Protzman v. Indianapolis & Cincinnati R.R. Co.

• Court: Indiana Supreme Court
• Writing for the Court: Perkins, J.
• Citation: Protzman v. Indianapolis & Cincinnati R.R. Co., 9 Ind. 445 (Ind. 1857)
• Decision Date: 27 November 1857
• Parties: Protzman v. The Indianapolis and Cincinnati Railroad Company

9 Ind. 445

Protzman v. The Indianapolis and Cincinnati Railroad Company

Supreme Court of Indiana

November 27, 1857

From the Dearborn Court of Common Pleas.

The judgment is reversed with costs. Cause remanded for further proceedings in accordance with this opinion.

Daniel S. Major, for appellant.

John Ryman, for appellee.

OPINION

Perkins J.

Suit by Protzman against the Indianapolis and Cincinnati Railroad Company, to recover for damages to a lot, in the city of Lawrenceburgh, occasioned by elevating the grade of the street in front of it, by said company, and laying a railroad track upon the grade.

The company answered, setting up a license from the city council. The plaintiff replied that the grade and track extended over 200 rods south of the depot of the road, and that the license granted by the council had been revoked before the extension was made. Demurrer to the replication sustained, and final judgment in favor of the company.

So far as the right of the plaintiff to recover was concerned, the license from the city council was of no consequence. That body had no power to deprive him of his right to damages from the company for any injury they might do, or have done, to his property; while it was not, on the other hand, his business to enforce rights of the city. It was the province of each to act in reference to his or her own particular interest. The council had a right to establish the grade of the streets of the city, and improve them accordingly, as streets, for the accommodation of the inhabitants; and if this was done in a careful manner, the owners of lots upon the streets had no right to damages accruing through such improvements. They bought their lots subject to such right of action in the council. Snyder v. President etc., of Rockport, 6 Ind. 237. But the city council cannot authorize a railroad company to take or injure the property of a citizen. That is not a part of the duty of the council in relation to grading streets, etc., in the proper sense of the term. Enough upon this point. But two questions arise upon the record before us.

1. Had the railroad company a right, by virtue of their charter, to appropriate, as against the plaintiff, the street? We say, as against the plaintiff; for the right, as against the city council, does not come in question in this suit.

2. Could the plaintiff maintain any legal proceedings against the company?

It has been stated that the grade and track complained of extended southward from the depot 200 rods. And it is argued that the company were not authorized by their charter to make such extension, and hence, had no right to appropriate private property for that purpose. It is said that the charter was for a railroad from Indianapolis to Lawrenceburgh; that the depot, at the latter place, was the southern terminus of the road; and that an extension, 200 rods beyond the depot, was outside of the charter of the company. We cannot concur in this view of the question. At the termini of railroads, depots...