St. Joseph Cnty. v. South Bend & M. St. Ry. Co.

• Citation: 20 N.E. 499,118 Ind. 68
• Court: Supreme Court of Indiana
• Decision Date: 08 March 1889
• Parties: St. Joseph County v. South Bend & M. St. Ry. Co.

118 Ind. 68

20 N.E. 499

St. Joseph County

v.South Bend & M. St. Ry. Co.

Supreme Court of Indiana.

March 8, 1889.

Appeal from circuit court, St. Joseph county; Daniel Noyes, Judge.

T. E. Howard and A. Anderson, for appellant. Lucius Hubbard and E. V. Bingham, for appellee.

Berkshire, J.

This was an action by the appellee to recover from the appellant the sum of $500. On March 11, 1885, the appellant granted to the appellee the right to lay a street railway on the highway south and west of St. Joseph river, from South Bend to Mishawaka, upon certain conditions, one of which was that the appellee would pay into the treasury of St. Joseph county the sum of $500, within 20 days, said sum to be paid to the appellee when the conditions were all complied with by the appellee. At the request of the parties, the court made a special finding. To the conclusions of law the appellant excepted, and the court gave judgment for the appellee for the sum of $500 and costs. There is but one error assigned, which is as follows: That the court erred in its conclusions of law on the facts found. The following is the special finding, as made by the court:

“That the South Bend Street-Railway Company, on or before the 11th day of March, 1885, had applied to the defendant, the board of county commissioners of St. Joseph county, Ind., for leave to lay a street-railway track on a public highway on the north side of the St. Joseph river, from South Bend to Mishawaka, not in the corporate limits of any town or city, which permission was granted, and an order made by the defendants in such matter, in the terms following:

‘Eighth Day, March 11th, 1885.

In the Matter of the Petition of the South Bend Street-Railway Company to extend said railway. Now comes the South Bend Street-Railway Company, and presents to the board their petition in the words and figures following, to-wit: [Insert.]

And, said petition being heard, on motion of the board it is resolved, that the South Bend Street-Railway be, and is hereby, authorized to lay down and operate a street railway on the public highway next north of the St. Joseph river, between the easterly limits of the city of South Bend and the westerly limits of the town of Mishawaka, on the conditions, to-wit:

(1) Thirty days from the passage of this resolution pay into the treasury of St. Joseph county the sum of $500, the same to be a part of the funds of this county: provided, however, that, in case the said street railway shall be completed and in actual operation, as hereinafter provided, on or before the first day of January, 1886, then, and in such event, and not otherwise, said sum of money shall be repaid to said company.

(2) The cars to be used on the track of said company shall be operated by animal power only, and shall be used only to carry passengers and their baggage, and material for constructing and repairing tracks, and shall be of the best style and material, and the price for carriage of passengers between Mishawaka and South Bend not more than ten cents per trip for each passenger, and not more than fifteen cents for the round trip, if round-trip tickets are given.

(3) The track shall be laid level with the surface of the highway, when laid thereon, and shall conform to the grade thereof in such a manner as in no way to impede the passage of vehicles, and with proper bridges, so that the flow of water in the ditches and gutters shall be in no way hindered or impeded. The track may be laid along and close to the north and east line of the highway outside of the raised, improved, and traveled portion thereof, or it may be laid on the road-bed as worked and traveled, and in no case shall the west and south line of the track be laid within three feet of the center of the road-bed of the highway, as worked and traveled, and if laid on the road-bed then the company shall keep the space between the rails and two feet on each side outside of the rails in good order for travel, so as at all times to be on a level with the highway, and the line shall be completed by January 1, 1886.

(4) The track of the company shall be of the uniform gauge of four feet eight and one-half inches in width, and shall be built of the most approved material.

(5) The cars shall not be allowed to stand on the highway, unless when attached to a team and waiting for passengers.

(6) This covenant and permit is to be void, unless the said company complies with the foregoing provisions, and has the said street railway completed and in actual operation for the whole length of the line on or before the first day of January, 1886.'

That the plaintiff, desiring to lay a street railway on the same highway mentioned in the foregoing order, and also on the highway first south of the St. Joseph river, between South Bend and Mishawaka, filed a petition in the following terms with the defendant, to-wit:

‘ To the Board of Commissioners of St. Joseph County, State of Indiana-Gentlemen: Your petitioners, the South Bend and Mishawaka Street-Railway Company, would most respectfully represent that they are desirous of constructing, owning, and maintaining two street-railway lines or routes of street railway, one of said routes to be located on and along the river road on the northerly side of the St. Joseph river; thus enabling said company to construct a continuous line or route of street railway from the city of South Bend to the town of Mishawaka. Also a second line or route of street railway in and along Vistula highway, on the southerly side of the St. Joseph river; thus enabling your petitioners to construct a second continuous line or route from the city of South Bend to the town of Mishawaka. We therefore submit the following ordinance for your consideration.

Yours, respectfully,

South Bend & Mishawaka Street-Railway Co.

By J. W. Boynton, President.

J. H. Knight, Secretary.'

That on the consideration of said petition, on the 11th day of March, 1885, the board of commissioners of St. Joseph county, Ind., made the following order:

‘Eighth Day, March 11th, 1885, (March Term.)

In the Matter of the Petition of the South Bend and Mishawaka Street Railway Company. Now comes the South Bend and Mishawaka Street-Railway Company, and presents to the board their petition, in the words and figures following, to-wit: [Insert.]

And, the board being fully advised, it is ordered further, resolved, that the South Bend and Mishawaka Street-Railway Company is hereby authorized to lay down and operate a street railway on the same public highway, and also on the public highway next south of the St. Joseph river, and between the easterly limits of the city of South Bend and the westerly limits of the town of Mishawaka, on the same terms and conditions, in every respect, as the terms and conditions hereinbefore imposed on the South Bend Street-Railway Company, except that the track on the north side of the St. Joseph river shall be laid on the south and west sides of the public highway, and the whole of said lines on both sides of the river shall be completed and in operation by January 1, 1886; subject to the conditions and forfeitures aforesaid.'

The court further finds that from the easterly limits of South Bend to the westerly limits of Mishawaka is about four miles. The ordinary width of the highway on which such railway is located is about 60 feet, and the ordinary width of the traveled portion thereof is about 32 feet. That within the time prescribed in said order of the defendant the plaintiff paid into the treasury of St. Joseph county, Ind., said sum of five hundred dollars, and did proceed to construct its road on both sides of the St. Joseph river. That the said street railway on the north and east side of the St. Joseph river was completed and in operation in all respects in compliance with the order and grant of the defendant, before January 1, 1886. That at the December term, 1885, of said board of commissioners, the plaintiff petitioned and demanded of said board that the said five hundred dollars be refunded. That thereupon the board passed the following order, December 17, 1885:

‘In the Matter of the South Bend and Mishawaka Street-Railway Company to have their $500 guaranty deposit refunded. Now comes the South Bend and Mishawaka Street-Railway Company, by its secretary, J. H. Knight, and the board having considered the petition of said company heretofore filed, asking for the return of the sum of five hundred dollars, deposited in the county treasury as security for the faithful construction of said street railway, according to the terms of the grant made by this board, which petition is in these words, [insert,] and the members of the board having made personal inspection of said street railway, and the board being fully advised, are of the opinion that said street railway has been, in general, constructed according to the requirements of said grant, with certain exceptions, as follows:

The board are of opinion that whereas, it was required in said grant that the track of said street railway...