South East & St. L. Ry. Co. v. Evansville & Mt. V.E. Ry. Co.
Decision Date | 26 November 1907 |
Docket Number | No. 20,906.,20,906. |
Citation | 82 N.E. 765,169 Ind. 339 |
Court | Indiana Supreme Court |
Parties | SOUTH EAST & ST. L. RY. CO. et al. v. EVANSVILLE & MT. V. E. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Posey County; O. M. Welborn, Judge.
Action by the South East & St. Louis Railway Company and another against the Evansville & Mt. Vernon Electric Railway Company. From a judgment for defendant rendered on overruling a demurrer to the answer, plaintiffs appeal. Affirmed.C. A. De Bruler, for appellant. F. P. Leonard, for appellee.
Appellants, as owners of a steam railway extending from Evansville to East St. Louis, brought this action to enjoin appellee from constructing an interurban electric railroad across their track without first acquiring the right so to do by condemnation proceedings. Appellee answered the complaint as follows: Appellants' demurrer to this answer, on the ground of insufficient facts, was overruled, to which ruling appellants excepted, and, declining to plead further, final judgment was rendered in favor of appellee. The sufficiency of appellee's answer is the only question presented for decision by this appeal.
Appellants' counsel contends that the construction of an electric interurban railroad along a public highway across the track of a steam railroad is a taking of private property within the meaning of the constitutional provisions, and cannot be done without first causing compensation therefor to be assessed and paid or tendered. Street railroad and other kindred companies have been authorized since 1879 to locate and construct their tracks along and upon a rural highway by procuring consent of the board of commissioners of the county in which such highway is situated. Sections 5465, 5466, 5467, 5468, Burns' Ann. St. 1901. Appellee's answer avers that its railroad was located upon the highway described in pursuance of consent so to do obtained from the board of commissioners of the county. It is further alleged that the appellee proposed to construct a standard crossing in such manner as not unnecessarily to impair the usefulness or injure the franchise of appellants; and so as to afford security to life and property in the operation of both roads. It does not appear from the pleadings whether the railroad was senior or junior to the highway crossed. We need not decide whether seniority would enlarge the rights of the railroad with respect to the matter under consideration, since, at all events, the exercise of its franchise over the crossing was subject to the burden of the public easement in the highway. Assuming that the railroad was constructed across the highway, its owners thereby acquired merely the privilege of crossing in the transportation of freight and passengers, subject to all proper uses to which the highway might be devoted under the law. The owners of the railroad were bound to know that a street or interurban railroad might thereafter be lawfully located upon such highway and across the track at that point. The board of commissioners, in whom the authority was lodged, determined that the location and construction of the interurban road upon the highway would subserve the convenience of the traveling public. When appellants obtained the privilege of crossing this highway, they did it with the knowledge and upon the condition that they must submit to such growing inconveniences as might result from the development of the country, among which would be the wants and demands of the publicfor better facilities in traveling. Appellants complain that their track will be cut and their private rights invaded. Such interference must have been contemplated when their road was located across a public highway. It appears that the crossing is to be made at the expense of appellee, and in such manner as to cause the least practicable interference with the operations of appellants' road, and, in our opinion, no encroachment upon the legal rights of appellants is threatened, and none of its property will be taken or damaged in contemplation of law. Our...
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