Terre Haute & L.R. Co. v. Bissell

• Court: Indiana Supreme Court
• Writing for the Court: Howk
• Citation: Terre Haute & L.R. Co. v. Bissell, 108 Ind. 113, 9 N.E. 144 (Ind. 1886)
• Decision Date: 26 October 1886
• Parties: Terre Haute & L. R. Co. v. Bissell.

108 Ind. 113

9 N.E. 144

Terre Haute & L. R. Co.

v.Bissell.

Supreme Court of Indiana.

October 26, 1886.

Appeal from circuit court, Marshall county.

J. G. Williams, for appellant. McLaren & Packard, for appellee.

Howk, C. J.

Errors are assigned here by appellant, the defendant below, calling in question the decisions of the circuit court in overruling (1) its demurrerto the first paragraph of appellee's complaint; (2) its demurrer to the second paragraph of such complaint; and (3) its motion for a new trial.

This suit was commenced on the twenty-ninth day of September, 1884. In the first paragraph of his complaint appellee alleged that he then was, and for five years last past had been, the owner in fee-simple of lots numbered from 11 to 18, both inclusive, in Wilson's subdivision of outlot No. 18, in Merrill's addition to the city of Plymouth, in Marshall county; that such lots abutted on a public street of such city, known as First street, 60 feet wide, for the distance of ------- hundred feet along the west line of such street; that, as the owner of such lots, appellee was also the owner in fee-simple of the west 30 feet of such street immediately in front of his lots, extending from the front line of such lots to the center or middle line of such street; that, during such five years, appellee had made valuable and lasting improvements, of the value of $5,000, on such lots, in the erection of a dwelling-house wherein he and his family resided; that, within the last two years, ingress and egress to and from appellee's lots, and his residence and other buildings thereon, had been obstructed and prevented, on the east side thereof, by two railroad tracks constructed upon and along said street, and in constant use by appellant, in moving and transporting its cars and locomotives on and along such tracks on said street, in front of and near to appellee's lots and residence; that by the construction and constant use of such railroad tracks on said street, in front of and near to appellee's residence property, appellant had caused such an obstruction to the free use of said property as essentially to interfere with the comfortable enjoyment of life therein, and the emission of large volumes of smoke, cinders, dust, and other offensive matter from appellant's locomotives, which were constantly moving over said tracks, was offensive to appellee and his family; that within two years last past appellant unlawfully, and without right, and without having first caused appellee's damages to be assessed and tendered to him, and without his consent, entered upon and laid down two railroad tracks on that portion of said street lying in front, or on the east side, of appellee's said lots, and maintained and used such tracks for the passage of locomotives and cars thereon, and all without his consent. The second paragraph of the complaint does not differ materially from the first paragraph in its statement of the facts constituting appellee's supposed cause of action against the appellant.

To each of the paragraphs of appellee's complaint, appellant's demurrer, for the alleged insufficiency of the facts therein to constitute a cause of action, was overruled by the court. It is earnestly contended by appellant's learned counsel that the court below erred in each of these rulings. It will be observed that, while appellee carefully alleged that he was the owner in fee-simple of the west half of First street, in the city of Plymouth, extending from the front or east line of his lots eastwardly 30 feet, to the middle or center line of such street, yet he nowhere averred, in either paragraph of his complaint, that, in the construction and use of its two railroad tracks on such street, appellant had entered upon, occupied or used, by either of such tracks, that part of such street of which he claimed to be such owner. For the want of such an averment, appellant's counsel earnestly insist that each paragraph of appellee's complaint was insufficient to withstand its demurrer thereto.

This objection seems to be well taken as to each paragraph of the complaint. It must be assumed, in the absence of any averment to the contrary, that appellant had entered upon and laid down its two railroad tracks, within the limits of First street, with the consent and permission of the common council of the city of Plymouth. If such city was incorporated under the general law of this state for the incorporation of cities, as we must assume it was, in the absence of any showing to the contrary, by the express provisions of that law, (section 3161, Rev. St. 1881,) in force since March 14, 1867, its common council had exclusive power over its streets, alleys, and highways. It is settled by our decisions that the power of a city, incorporated under our general laws for the incorporation of cities, over its streets and alleys, includes or extends to many other uses than those of ordinary travel on public highways. Thus, in Cox v. Louisville, etc., R. Co., 48 Ind. 178, it is said: “So far as the highway, street, or easement is concerned, as the municipality has complete control thereof, it may, we presume, make or authorize any use of the street which will not essentially change and divert it from its intended use as a public highway. But this power of the common council of a city, over a street as a highway, cannot, of course, affect the rights of the individual owner of the fee in the soil over which the highway or street passes.” This right of the individual, according to the case of Protzman v. Indianapolis, etc., R. Co., 9 Ind. 467, is as much property as the lot itself. As was said in Common Council, etc., v. Croas, 7 Ind. 9, it is a right distinct from the claim of the public, which even the legislature could not take away, unless to appropriate to a public use; “in which case, of course, compensation must be made.” City of Logansport v. Shirk, 88 Ind. 563;Baltimore, etc., R. Co. v. North, 103 Ind. 486; S. C. 3 N. E. Rep. 144.

Conceding, in the case in hand, that appellee was the owner in fee-simple of First street, in the city of Plymouth, from the eastern or front line of such lots to the middle line of such street, we cannot presume, in the absence of averment to that effect in aid of the averments of appellee's complaint, that in the construction of its two railroad tracks, or in its use thereof by the passage over the same of its cars and locomotives, within the limits of First street, appellant had entered upon, occupied, or used that part of such street owned in fee-simple by the appellee. The grievances of which appellee complained were not shown, by the allegations of either paragraph of his complaint, to be injuries to that part of First street whereof he claimed to be the owner in fee-simple. In the absence of any showing that the tracks of appellant's railroad were located, constructed, and used on and over that part of First street of which appellee claimed to be the owner in fee-simple, the grievances whereof he complained, caused or occasioned by the occupation and use of First street for railroad purposes, were such incidental injuries merely as he sustained in common with the public, and not different in degree or character from those sustained by the public generally. For such injuries appellee cannot maintain an action against the appellant. McCowan v. Whitesides, 31 Ind. 235;Cummins v. City of Seymour, 79 Ind. 491;Matlock v. Hawkins, 92 Ind. 225;Dwenger v. Chicago, etc., Ry. Co., 98 Ind. 153.

We are of opinion, therefore, that the trial court erred in overruling appellant's demurrer to each of appellee's complaints.

Under the alleged error of the court in overruling the motion for a new trial, it is claimed by appellant's counsel that the court clearly erred in giving the jury, at appellee's request, a certain instruction. The point is made by appellee's counsel, and is relied upon apparently with much confidence, that the bill of exceptions, containing the evidence on the trial and the instructions given and refused by the court, was not filed within the time granted, and therefore is not properly a part of the record. It is shown by the transcript before us that the motion for a new trial was overruled, and judgment rendered, on the fourth day of April, 1885, and appellant was then given 60 days from that day “to present its bill of exceptions herein to the honorable judge of the Marshall circuit court;” that within such 60 days, to-wit, on the first day of June, 1885, appellant presented its bill of exceptions to the judge aforesaid; that thereafter, on the thirtieth day of June, 1885, such bill was “signed, sealed, and made a part of the record herein,” by the judge of such court; and that on the next day, to-wit, July 1, 1885, such bill of exceptions, signed and sealed as aforesaid, was duly filed in the court be low.

It will be seen from the foregoing abstract of the record that while appellant's bill of exceptions was prepared and presented to the judge below, for his signature, within the 60 days allowed by the court, yet it was not in fact signed by such judge and filed until nearly one month after the expiration of such 60 days. Under the provisions of section 346 of the Civil Code of 1852, and the rules of practice founded thereon, it is very clear that the bill of exceptions so signed and filed would have constituted no proper part of the record of this cause, on an appeal to this court. Dunn v. Hubble, 81 Ind. 489. But the Civil Code of 1881 made a radical change in the practice theretofore existing, in relation to bills of exceptions, in so far, at least, as the filing thereof is concerned. In section 629, Rev. St. 1881, which is section 406 of the Civil Code of 1881, it is provided, in effect, that when the record does not otherwise show the decision excepted to, or the grounds of objection thereto, “the party...