South East & St. Louis Railway Company v. Evansville & Mt. Vernon Electric Railway Company

• Decision Date: 26 November 1907
• Docket Number: 20,906
• Citation: 82 N.E. 765,169 Ind. 339
• Court: Indiana Supreme Court
• Parties: South East & St. Louis Railway Company et al v. Evansville & Mt. Vernon Electric Railway Company

82 N.E. 765

169 Ind. 339

South East & St. Louis Railway Company et al v. Evansville & Mt. Vernon Electric Railway Company

No. 20,906

Supreme Court of Indiana

November 26, 1907

From Posey Circuit Court; O. M. Welborn, Judge.

Suit by the South East & St. Louis Railway Company and another against the Evansville & Mt. Vernon Electric Railway Company. From a decree for defendant, plaintiffs appeal.

Affirmed.

C. A DeBruler, for appellants.

F. P Leonard, for appellee.

OPINION

Montgomery, J.--

Appellants, as owners of a steam railway extending from Evansville to East St. Louis, brought this suit 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: "Defendant, for answer to plaintiffs' complaint herein, says that said defendant is a corporation duly organized and incorporated under the laws of the State of Indiana, governing the organization, incorporation, construction and operation of electric interurban railways, and as such is now engaged in the construction of a line of interurban electric railroad from the city of Evansville, Indiana, to the city of Mt. Vernon, Indiana, to be operated as such an electric railroad between such points only upon the completion of the same. Defendant further avers that, in the construction of its said road, it is necessary to cross the track of the plaintiff's road at a point about four miles east of the city of Mt. Vernon; that such point is within the limits of a certain public highway, of Posey county, Indiana, a highway along, over and across which defendant is authorized by the board of commissioners to construct an electric railroad, by order made by said board August 8, 1905, and that in crossing plaintiffs' track said defendant's track touches upon the right of way of plaintiffs and their track within the lines of said highway only; that defendant in making said crossing intends to cross plaintiffs' track at grade and is using a standard railway crossing, to wit, the kind of crossing commonly used for such purposes; that in making and placing such crossing defendant is so constructing the same in a sufficient manner not unnecessarily to impair the usefulness or injure the plaintiffs in their franchises, and so as to afford proper security for life and property in the operation of plaintiffs' and defendant's roads."

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. Since 1879 street railroad and other kindred companies have been authorized 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. §§ 5671-5674 Burns 1908, §§ 4155-4158 R. S. 1881.

Appellee's answer avers that its railroad was located upon the highway described in pursuance of consent 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 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 public for 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 their property will be taken or damaged, in contemplation of law. Our conclusion, therefore, is that the owners of a steam railroad are not entitled to recover compensation for the crossing of its track, at a public highway intersection, by an electric interurban road built upon such highway with the consent of the board of commissioners of the county, nor can such crossing be enjoined until compensation therefor shall have been assessed and paid or tendered. Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264, 38 N.E. 604; 3 Elliott, Railroads, § 1135; Southern R. Co. v. Atlanta R., etc., Co. (1900), 111 Ga. 679, 36 S.E. 873, 51 L. R. A. 125; General Electric R. Co. v. Chicago, etc., R. Co. (1900), 184 Ill. 588, 597, 56 N.E. 963; Chicago, etc., R. Co. v. West Chicago St. R. Co. (1895), 156 Ill. 255, 40 N.E. 1008, 29 L. R. A. 485; Pittsburgh, etc., R. Co. v. West Chicago St. R. Co. (1895), 156 Ill. 385, 40 N.E....