Smith v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company

• Decision Date: 28 May 1907
• Docket Number: 20,881
• Court: Indiana Supreme Court
• Parties: Smith et al. v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company

81 N.E. 501

170 Ind. 382

Smith et al. v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company

No. 20,881

Supreme Court of Indiana

May 28, 1907

Rehearing Denied May 14, 1908.

From Hendricks Circuit Court; Thomas J. Cofer, Judge.

Condemnation proceedings by the Cleveland, Cincinnati, Chicago & St Louis Railway Company against Alvah B. Smith and another. From a decree for plaintiff, defend ants appeal.

Affirmed.

Brill & Harvey and Samuel Ashby, for appellants.

L. J Hackney, Frank L. Littleton and James L. Clark, for appellee.

OPINION

Montgomery, J.

This is an appeal from an interlocutory order appointing appraisers, in a proceeding by appellee to condemn and appropriate lands for the purpose of making local alterations and raising the grade of the line of its railroad in Hendricks county, under an act of the legislature of 1905 (Acts 1905, p. 59, §§ 893-904 Burns 1905).

The complaint alleges that appellee is a corporation organized under the laws of this State authorizing the organization, construction and operation of steam railways, and is the owner and engaged in operating a line of railroad from the city of Indianapolis, through Hendricks county, to the city of St. Louis, in the state of Missouri; that appellee's line of railroad through appellants' real estate in said county is unnecessarily inconvenient and expensive to operate, by reason of unavoidable curves, grades and other causes, and will be greatly improved by straightening curves, reducing grades, raising bridges and fills, deepening cuts, and making additional tracks; that appellee's board of directors has determined that such local alterations are necessary, has resolved to make the same, and has adopted a map and profile of the proposed changes, and caused the same to be filed in the office of the clerk of the Hendricks Circuit Court; that appellant Smith is the owner of the real estate and rights particularly described to be appropriated; that the condemnation as well as appropriation of said lands is necessary for appellee's use in making said changes, and its use is necessary in widening the base and raising the fill for appellee's tracks at said point; that before commencing this proceeding appellee made an effort to purchase said lands from appellant Smith, but failed to agree with him for the purchase of the same for the purposes aforesaid, and has been and is now unable to agree with him for such purchase.

Appellants filed twenty-six objections to the complaint, of which those numbered from eight to twenty-five, inclusive, were stricken out upon appellee's motion. The cause was heard by the court upon the complaint and appellants' objections 1, 2, 3, 4, 5, 6, 7 and 26, and a finding made to the effect that the complaint is true, and none of such objections well taken, and thereupon appraisers were appointed.

It is charged upon this appeal that the court below erred in striking out each of appellants' objections numbered from eight to twenty-five, inclusive; in striking out interrogatories one to twenty-two, inclusive, propounded by appellants to be answered by appellee; in refusing to require appellee to produce books and papers called for in appellants' application therefor by specifications two to twelve, inclusive; in overruling appellants' objections to the complaint, numbered 1, 2, 3, 4, 5, 6, 7 and 26; in holding that appellee had the right to condemn the tracts of land described in the amended complaint; in appointing appraisers; in admitting in evidence over objection appellee's exhibits two to ten, inclusive; in permitting witnesses to answer certain questions over appellants' objection; and, finally, that the order appointing appraisers is not sustained by sufficient evidence and is contrary to law.

Appellants' objections to the complaint averred that (1) the court had no jurisdiction of the subject-matter, or of the person of appellant; (2) and (3) that appellee had no right to exercise the power of eminent domain for the use sought, or for any use or purpose; (4) that appellee is not a railroad corporation duly organized under the laws of this State; (6) and (7) that before the filing of the complaint appellee had not made a map and profile of the route intended to be adopted, and caused the same to be certified by a majority of its board of directors and filed in the office of the clerk of the Hendricks Circuit Court; (26) that the complaint does not state facts sufficient to constitute a cause of action and to entitle appellee to exercise the power of eminent domain for the use sought, and entitle it to the relief prayed.

In presenting the questions for consideration to this court, appellants' counsel have grouped in one class the alleged errors in overruling appellants' objections to the complaint, in holding the evidence sufficient to authorize appellee to condemn and appropriate the property involved, and in making the interlocutory order appointing appraisers. For convenience we will follow in argument substantially the order thus adopted.

Appellants' counsel correctly state propositions of law to the effect that corporations are creatures of statute, with no powers except those conferred by law; that the right to exercise the power of eminent domain is a sovereign power of the State, which may be exercised only by a person or corporation to whom it has been expressly granted, and for a public use, and that such grants are strictly construed.

It appears from the evidence that in the year 1868, the Cleveland, Columbus & Cincinnati Railroad Company and the Bellefontaine Railroad Company were consolidated under a law of the state of Ohio, passed March 30, 1851, and took the name of the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company, the line of such consolidated company extending from Cleveland to Indianapolis. Articles of incorporation for the Indianapolis & St. Louis Railroad Company were filed in the office of the Secretary of State of the State of Indiana on August 31, 1867. This road extended from Indianapolis to the state line at Terre Haute. The road was sold upon a decree of foreclosure to E. B. Thomas, and he, with fifteen others, formed a railroad corporation, in pursuance of the act of March 3, 1865 (§§ 5333-5339 Burns 1908, §§ 3945-3951 R. S. 1881), taking the name of the Indianapolis & St. Louis Railway Company. This company and the consolidated company named, on March 19, 1889, entered into an agreement of consolidation with the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company, an Indiana corporation, whose line of railroad extended from Cincinnati to Lafayette, whereby the appellee was formed under the name of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. This agreement of consolidation was filed in the office of the secretary of state of the state of Ohio, June 7, 1889, and in the office of the Secretary of State of the State of Indiana, June 8, 1889.

The right of a railroad company, organized in this State, to consolidate with another, organized in an adjoining state, was given by the following statute: "Any railroad company heretofore organized under the general or special laws of this State shall have the power to intersect, join, and unite its railroad with any other railroad constructed or in progress of construction in this State or in any adjoining state, at such point on the state line or at any other point as may be mutually agreed upon by said companies; and such railroad companies are authorized to merge and consolidate the stock of the respective companies, making one joint stock company of the two railroads thus connected, upon such terms as may be by them mutually agreed upon, in accordance with the laws of the adjoining state with whose road or roads connections are thus formed: Provided, their charters authorize said railroads to go to the state line or to such point of intersection." Acts 1853, p. 105, § 1, § 3971 R. S. 1881. The right of consolidation so given applies to railroads organized after, as well as before, the enactment of the original statute. Acts 1853, p. 107, § 1, § 5386 Burns 1908, § 3975 R. S. 1881.

The statutes of Ohio under which these consolidations were effected read as follows: "§ 3379. When the lines of road of any railroad companies in this state, or any portion of such lines, have been or are being so constructed as to admit the passage of burthen or passenger-cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single company.

" § 3380. A company organized in this state, whose line of road is made, or is in process of construction, to the boundary line of the state, or to any point either in or out of the state, may consolidate its capital stock with the capital stock of any company in an adjoining state, organized for a like purpose, and whose line of road has been projected, constructed or is in process of construction to the same point where the several roads so united and constructed will form a continuous line for the passage of cars; and roads running or to be constructed to the bank of a river which is not bridged, shall be held to be continuous under this section.

" § 3381. The consolidation shall be made under the conditions and restrictions following: (1) The directors of the several companies may enter into a joint agreement, under the corporate seal of each company, for the consolidation of the companies, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new company, the number of directors and other officers thereof, and their places of residence, the amount of the capital stock of the new company agreed upon, the number of shares of...