The Baltimore And Ohio Southwestern Railway Company v. Board of Commissioners of Jackson County
| Citation | 59 N.E. 856,156 Ind. 260 |
| Decision Date | 05 March 1901 |
| Docket Number | 18,439 |
| Parties | The Baltimore and Ohio Southwestern Railway Company v. Board of Commissioners of Jackson County et al |
| Court | Supreme Court of Indiana |
Original Opinion of December 11, 1900, Reported at: 156 Ind 260.
Appellant under its petition for a rehearing strenuously contends that we erred in the original opinion in holding that the order of the board, under which the ditch in question was located in part upon lands embraced in its right of way, was not absolutely void. The conclusion which we reached at the former hearing was to the effect that the statutes authorizing the establishment of public ditches by proceedings before the board of commissioners, when given a fair and reasonable construction, must be held to confer upon such boards the power to locate such ditches when necessary in part, at least, upon or over the lands belonging to the right of way of a railroad company. Consequently the board having such jurisdiction or power, the proposition as to whether the secondary use of the right of way by the location and establishment of the ditch thereon is so inconsistent with the use to which it had already been subjected as necessarily to supersede or destroy such latter use, became a question, under the facts and circumstances in the first instance, for the determination of the board of commissioners. Inasmuch, therefore, as the order of the board was not void by reason of the absence of jurisdiction upon the part of that tribunal, it was not open to be collaterally assailed by injunction, but appellant's remedy was by an appeal to the circuit court. We conceded the doctrine for which appellant contended, that its right of way could not be again taken for a second public use, where the two uses were so incompatible with each other that the secondary one would necessarily supersede or destroy the former, unless such second appropriation was either expressly or impliedly authorized by the legislature. We are not prepared, however to hold that in the establishment of a public drain by the board of commissioners under the plenary powers conferred by the statutes authorizing the same, that such board has no jurisdiction or power to decide as to whether the two uses can coexist. The location and use of a public drain upon a part of a railroad company's right of way, and the location and use of a public highway or street thereon, present quite...
To continue reading
Request your trial