State of Indiana v. Lake Erie & W.R. Co.

• Decision Date: 10 November 1897
• Citation: 83 F. 284
• Parties: STATE OF INDIANA ex rel. CITY OF MUNCIE v. LAKE ERIE & W.R. CO.
• Court: United States Circuit Court, District of Indiana

83 F. 284

STATE OF INDIANA ex rel. CITY OF MUNCIE v. LAKE ERIE & W.R. CO.

United States Circuit Court, D. Indiana.

November 10, 1897

Rollin Warner, for plaintiff.

Miller & Elam, W. E. Hackedorn, and John B. Cockrum, for defendant.

BAKER District Judge.

This suit was begun in the circuit court of Delaware county, in the state of Indiana, to procure a writ of mandamus to compel the change and reconstruction of an overhead crossing constructed by the defendant upon one of the streets of the city of Muncie, which crossing is alleged to be an unlawful and unnecessary obstruction of the traveling public having occasion to use the street. On the application of the defendant the case was removed from the state court into this court. The defendant, after such removal, moved the court to require the relator to strike out portions of the complaint as redundant and surplusage, and to file a complaint omitting such unnecessary and redundant matter. This motion was sustained, and in obedience to the order of the court the relator filed a condensed and substituted complaint, to which the defendant has interposed a demurrer on the ground that it does not state facts sufficient to entitle the relator to the mandatory relief asked for.

It is first urged that the condensed and substituted complaint is entitled, as was the original, in the circuit court of Delaware county, Ind., when it ought to have been entitled in this court. Assuming, but not deciding, that the condensed and substituted complaint should have been entitled in this court, the objection is unavailing. The title constitutes no part of the statement of the cause of action, and a defect therein cannot be reached by demurrer. The objection is purely technical, and is one which might be reached by a motion to correct the title, or perhaps by a motion to strike the pleading from the files, but not by a general demurrer to the complaint for want of facts.

The complaint shows upon its face that at the time the railroad and crossing were constructed, in 1879, and at the time the present defendant came into the ownership and possession thereof, the crossing complained of was not within the limits of the city of Muncie, and that whatever rights the city has in the premises have been acquired since the construction of the railroad crossing, by the annexation, as a part of the city, of the territory which embraced the highway upon which the crossing complained of had been constructed. The annexation took place in 1891. The defendant's contention is that since the railroad and crossing in question were constructed in 1879, about 12 years before the territory including them was annexed to the city, the relator must take 'the situation as it found it, and cannot now be heard to insist that the situation was in violation of law. ' The relator is not concerned with the question whether the crossing, as originally constructed, or as it existed at the time the limits of the city were extended, was sufficient or insufficient to accommodate the public travel. The question here involved is whether the crossing, at the time the suit was brought, constituted an unlawful obstruction of the highway. When the crossing was constructed, in 1879, the highway was a country road, outside the city limits. In 1891 the growth of the city required the annexation of contiguous territory, and thereby the highway and crossing were brought within its limits, and became one of its streets. From a town of a few thousands, Muncie has grown to be a city of about 20,000 inhabitants, largely due to the discovery and development of natural gas. The highway in question has become one of the most important streets in the city, and the crossing, which may have been sufficient before the extension of the limits of the city and its great increase in population, has now become wholly insufficient to accommodate the public wants.

As stated by counsel, the crossing of the highway by the railroad was not per se unlawful. The statute for the incorporation of railroads, approved May 11, 1852, found in 2 Burns' Rev.St.Ind. 1894, Sec. 5153 (Rev. St. Ind. 1881 Sec. 3903), par. 5, provides that a railroad corporation shall have the power 'to construct its road upon and across any stream of water, water course, road, highway railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream, or water course, road or highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises. ' The statute further provides that 'whenever the track of such railroad shall cross a road or highway, such road or highway may be carried under or over the track, as may be most expedient.' 2 Burns' Rev.St.Ind. 1894, Sec. 5172 (Rev. St. Ind. 1881, Sec. 5915). These sections are to be read together, and, thus read, they impose the duty of restoration on the company, whether the railroad crosses the highway at, above, or below grade. The duty thus imposed is also a common-law duty, incumbent upon the company without any statutory requirement. Indianapolis & C.R. Co. v. State, 37 Ind. 489; Railroad Co. v. Claire, 6 Ind.App. 390, 33 N.E. 918; Railroad Co. v. Crist, 116 Ind. 446, 454, 19 N.E. 310. The right to interfere with the highway is coupled with the duty to restore it to the condition of safety and usefulness in which it was before it was disturbed, or at least to restore it in such manner as not unnecessarily to impair its utility for public travel. This duty is violated if there is a failure to restore it to its former condition, in all cases where such restoration can be effected by the exercise of reasonable care and skill. The rule governing in such cases is well stated in 2 Wood, Ry.Law, § 271:

'Whenever an act is authorized to be done in a highway that would otherwise be a nuisance, the person or company to whom the power is given is not only bound to exercise it strictly within the provisions of the law, but also with the highest decree of care to prevent injury to the persons or property of those who may be affected by such acts. Hence, where a railroad company has been permitted to lay its track along or across a highway, it is bound to the use of every reasonable precaution to prevent injury to those passing along the highway, or crossing its track that is laid along or across the highway; and, if it fails to exercise a proper degree of care,-- not only such as is provided by the statute, but also such as is rendered necessary by the character of the obstruction and its location, having reference to a like reasonable care on the part of those approaching the obstruction,-- it becomes a nuisance, to the extent of its injury to individual rights, and renders the company liable in damages for all the consequences.'

The duty of restoration also includes the duty of maintaining the crossing in such manner as not unnecessarily to impair the convenience,...