Randall v. Bd. of Com'rs of Tippecanoe Cnty., 10623.

• Decision Date: 10 June 1921
• Docket Number: No. 10623.,10623.
• Citation: 131 N.E. 776,77 Ind.App. 320
• Parties: RANDALL et al. v. BOARD OF COM'RS OF TIPPECANOE COUNTY.
• Court: Indiana Appellate Court

77 Ind.App. 320

131 N.E. 776

RANDALL et al.

v.BOARD OF COM'RS OF TIPPECANOE COUNTY.

No. 10623.^*

Appellate Court of Indiana.

June 10, 1921.

Appeal from Superior Court, Tippecanoe County; Henry C. Vinton, Judge.

Action by William Randall and others against the Board of Commissioners of Tippecanoe County. Judgment for defendant, and plaintiffs appeal. Affirmed.

Charles M. Snyder, of Fowler, and Morris R. Parks and Geo. D. Parks, both of La Fayette, for appellants.

Allen Boulds, Daniel P. Flanagan, Clyde H. Jones, and Ed Jackson, all of La Fayette, for appellee.

ENLOE, C. J.

This was an action to recover damages, alleged to have been sustained by appellants, to certain real estate owned by them, located just west of the Wabash river, and immediately south of the west end of the wagon bridge across said river, which said bridge is at the west end of Main street, in the city of La Fayette.

To an amended complaint, in two paragraphs, a demurrer was sustained, and, appellants refusing to further plead, judgment was rendered against them for costs, from which judgment this appeal is prosecuted.

The errors assigned challenge the correctness of the rulings on said demurrer.

The paragraphs of complaint are each quite lengthy, but the following material facts appear from the averments thereof:

In 1863 a corporation known as “The Main Street Bridge Company” was duly organized under the laws of the state of Indiana for the purpose “of constructing and owning a bridge across the Wabash river, in Tippecanoe county, Indiana, and of construction and owning an embankment or causeway, which shall be most direct across the bottom land on the west side of Wabash river, and connect said bridge with the said road leading westward from La Fayette.”

It further appears from the averments of said complaint that said bridge company brought suit against the then owners of said “bottom land” for the purpose of acquiring, by condemnation proceedings, a strip of ground 125 feet wide, and 1,560 feet long, extending from the Wabash river westwardly across the said “bottom land,” said strip being in the line of said West Main street projected; that such proceedings were had in said cause that on the 28th day of June, 1864, the said court entered its judgment and decree “that said Main Street Bridge Company stand seized in fee simple of said strip of land appropriated by said Bridge Company, as and for the use of an embankment or causeway for her bridge, upon the payment of $1,347 damages within one year”; that in July, 1864, said damages were paid, and said Bridge Company at once entered upon and took possession of said strip of land; that in 1871 said Bridge Company sold, and, in consideration of $27,300 paid to it, conveyed by its warranty deed to appellee herein its toll road and bridge across the Wabash river, situate at the foot of Main street, in the city of La Fayette, together with all the rights, privileges, and appurtenances thereunto belonging; that in June, 1875, the appellee, by its warranty deed, conveyed to one Martin, a remote grantor of appellant, a strip of ground 22 1/2 feet wide, off the southerly side of said 125-foot strip, said strip extending from the east end of said 125-foot strip for some distance to the west, and which strip now forms the north part of appellant's lands, alleged to have been damaged, and for which this suit is brought; that for more than 20 years prior to March, 1913, a bridge, erected by appellee for the accommodation of wagons and other vehicles, had been maintained, together with the embankment, or causeway, upon which the roadway was constructed by the appellee herein; that the high waters of said river in March, 1913, undermined one of the piers of said bridge, causing the same to settle, and said bridge to become unsafe; that in September, 1913, the appellee entered into a contract for the construction of a new bridge across the Wabash river at said point, to take the place of the one so injured in the preceding March; that, according to the plans and specifications adopted for said new bridge, the west end thereof was located 170 feet to the west of the west abutment of the old bridge.

It further appears from the averments of the complaint that the said levee or causeway, extending westward from the west abutment of said old bridge, was 80 feet in width, and was constructed along the center line of said 125-foot strip; that said levee was 25 feet high; that the low-water banks of said river at said point are 12 feet high; that said levee or causeway was a public highway, and was without openings in said embankment; that from the west abutment of said old bridge a levee had been constructed southward to the right of way and embankment of the L. E. & W. Railway, and along the east line of appellant's land, thus protecting his said lands from overflow by the water from said river; that west of said bridge, and on the southerly side of said highway, a sidewalk had been constructed, and that the appellant was the owner of a building situate on the northerly end of his said land, which building had been so built that the floor thereof was on a level with said sidewalk; that said sidewalk extended to the southerly property line of appellee, and that said building of appellant was constructed along his northerly line, and abutted said sidewalk, and that appellant had access, for ingress and egress, to and from said building, to said highway across said sidewalk.

It further appears that in preparation for the construction of said new bridge the east end of said levee, or causeway, for a distance of 170 feet, from the old west pier to the new west pier, was entirely removed and taken away; that a pier for the new bridge is located 125 feet east of said west pier, and north of appellant's land; that said portion of said new bridge conforms to the old levee, or causeway, as to the center lines thereof; that said new bridge, as to the floor thereof, is nine feet higher than the old roadway; that the roadway of said new bridge is 40 feet in width from curb to curb, with a sidewalk 8 feet in width on either side thereof; that on both sides of said bridge is constructed a massive stone railing; that since the removal of said embankment the waters of said river flow over and upon the surface of appellant's property, and carry vast quantities of earth, sand, and débris thereon; that appellant's access to said property has been, by the work of building said bridge as aforesaid, entirely cut off and destroyed, and that said property is now of no value, and that they have sustained damage in the sum of $12,000.

From the foregoing facts it will be seen that to the south of said new bridge, and between the said bridge and appellant's northerly property line, is a space of about 10 feet, land owned by the appellee, and that appellant is without any means of getting from said roadway, or bridge, onto his land.

The theory of appellant's complaint is manifest from the following averments, as found in his complaint, viz.:

“That plaintiffs and their grantors, immediate and remote, for more than twenty years prior to the 9th day of September, 1913, owned, and had a special interest and easement in, said levee and bridge abutment, at the west end of said Main street bridge, adjoining plaintiff's property, and the maintenance of said bridge abutment and levee was necessary to the use and enjoyment of plaintiff's property, and the preservation of plaintiff's soil, and in the protection of plaintiff's property against waters of Wabash river; *** that the plaintiffs owned the right and easement of all the support and protection against high waters of the Wabash river which plaintiff's property had received, and of which plaintiffs and their grantors, immediate and remote, had been in possession for more than twenty years prior to said 9th day of September 1913.” (Our italics.)

There is no allegation in said complaint that the appellee herein, in any way, in the matters connected with the building of said new bridge, did not follow the law. In fact, the said complaint expressly alleges “that the defendant, acting within the scope of its authority,” let the contract for the removal of said levee. It is also expressly alleged “that the defendant, acting within the scope of its authority, took such necessary steps and action to the end that on the 9th day of September, 1913, said defendant let and entered into a contract for the construction of a new bridge across said Wabash river from the west end of Main street, in said city of La Fayette, according to certain plans and specifications.”

It further appears from the averments of the complaint that no part of appellant's land has been actually taken and appropriated in said work. In fact, as before stated, the new bridge, and the abutments thereof, are entirely on land owned by appellee. The averments show that to the south of the piers of said bridge there is 3 1/2 feet of land owned by appellee.

That the appellants have suffered a damage in the matter of this property is without question, but the nature of this damage, whether direct or simply consequential, is the matter we must now consider.

The appellee insists that the averments of the complaint show that no property of appellants was taken, and that therefore the damage complained of is merely consequential, and it therefore insists there can be no recovery. The appellants insist that they had a “special interest and easement in said levee and bridge abutment,” which interest and easement was property, and which was taken, and also that they had an easement and property right in said levee and highway, as a way of egress and ingress from and to their said premises, and which also was taken, and that therefore they are entitled to the damage they have sustained.

The answer to the question presented, as we view it, depends upon the validity of the claim of appellants to a property right in and to the said...