The Chicago and Calumet Terminal Railway Company v. The Whiting, Hammond and East Chicago Street Railway Company
| Decision Date | 13 November 1894 |
| Docket Number | 17,059 |
| Parties | The Chicago and Calumet Terminal Railway Company v. The Whiting, Hammond and East Chicago Street Railway Company |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
Interlocutory order granting the temporary injunction is affirmed.
E. D Crumpacker and H. S. Boutell, for appellant.
W. Olds and C. F. Griffin, for appellee.
This is an appeal from an interlocutory order granting a temporary injunction against the appellant interfering with or preventing the appellee from laying its railway connections over and across the roadbed and right of way of said appellant at the points where the tracks of appellee intersect the tracks of appellant, at the points where appellant's tracks and railway cross the following streets, namely, Hohman street, Gostlin street, and Oak street, in the city of Hammond, Ind.; Forsyth avenue, in the city of East Chicago, Ind., and Indiana Boulevard, a public highway nearly south of Whiting, Ind., where the tracks of appellee would, if connected, cross the said tracks of appellant.
It is assigned for error that the complaint does not state sufficient facts, and that the court erred in granting the temporary injunction.
It appears from the complaint, that the appellee is a corporation organized under the laws of this State providing for the incorporation of street railway companies (2 Burns R S. 1894, sections 5450 to 5465; R. S. 1881, sections 4143 to 4155), and that in the year 1893 it secured from the mayor and common council of the city of Hammond, Indiana, by ordinance duly enacted, a franchise permitting it to use certain streets in said city, among which are the streets already named, for the purpose of constructing thereon a street railway to be operated by electricity, with all the necessary appliances; that in said year last named the appellee also secured from the city of East Chicago, Indiana, then an incorporated town, and since incorporated as a city, by ordinance duly enacted, a franchise granting to appellee the right and privilege to use certain streets in said town, among them being Forsyth avenue, above named, for the purpose of constructing thereon its said electric street railway; that in the same year it secured from the board of commissioners of Lake county, in said State, by orders duly adopted, a franchise and license granting it the right to use certain public highways of said county, among which is Indiana boulevard, for the purpose of constructing, maintaining and operating thereon its said electric street railway, all of which licenses and franchises were duly accepted by appellee, and it gave bond in the sum of $ 10,000 to each of said municipal corporations, conditioned that it would save them harmless on account of any negligence of appellee in the construction or operation of its said street railway; that the purpose of appellee, and the purpose of its corporation was, and is, the construction and operation of an electric street railway in the said town, now city, of East Chicago, and through the said city of Hammond, Indiana, over certain public highways of the said county of Lake to and through the village of Whiting, in said county, and thence over certain public highways, the right to use which had been granted by the said board of commissioners, as before stated, to the State line between the States of Indiana and Illinois, at a point on the said Indiana boulevard near the village of Roby; that it has constructed its said street railway, with all its attachments and appurtenances, with the exception of certain railroad crossings at points where its said line of railway crosses the tracks of steam railroad companies upon said public highways hereinafter mentioned; that it has been, and now is, operating all that portion of its said railway in the city of Hammond lying south of the Michigan Central railroad tracks in said city, being about two miles in length, and its entire line is completed from the Michigan Central railroad tracks, in said city of Hammond, to and through the said city of East Chicago, with the exception of the railroad crossings before mentioned; that the appellant is a corporation operating by steam power a line of railway from the city of Chicago, Illinois, into said county of Lake, in the State of Indiana, passing through said city of Hammond, the said city of East Chicago and the said village of Whiting; that the railroad tracks of said appellant cross the said Hohman street, Gostlin street, and Oak street, in said city of Hammond, and the said Forsyth avenue, in the city of East Chicago, as nearly as may be at right angles, and the said Indiana boulevard at a point near and south of the said village of Whiting in a direction nearly if not quite at right angles; that the tracks of said street railway are laid upon, along and lengthwise with the said streets and public highways aforesaid, and when completed, by the construction of connections or crossings over the tracks of said appellant, it will cross the said appellant's railway tracks at all points where they cross the said streets and public highways; that appellant had refused to permit the said street railway company to connect its said railway tracks by constructing proper railroad crossings and connections where the tracks of appellee cross the tracks of appellant as aforesaid, unless appellee will enter into a contract with appellant agreeing to certain requirements demanded by appellant covering the expense of maintaining gates and flagmen at said points, and the future construction by appellee, at its own expense, of certain devices commonly known as interlocking switches which may in future be demanded, and will, unless restrained, prevent by force the construction of said crossings, and has threatened to, and will, tear up and remove by force any crossings or connections at said points across its said railway tracks which appellee may succeed in constructing thereat; that by force appellant has made it impossible for appellee to operate its said street railway between the said city of Hammond and the said city of East Chicago, and appellee can not so operate its said street railway to connect any of said cities or villages aforesaid until said tracks are connected and crossings laid over the tracks of appellant at the points aforesaid; that appellee has a large force of men ready to construct and lay the said crossings, and is now ready and waiting to operate its said road except the laying of the said tracks across the appellant's tracks; that in the connection of its said railway tracks and the laying of said crossings aforesaid, appellee does not propose, nor has it proposed, desired or intended to in any manner attach or fasten the same or lay the same upon or against any of the railway tracks of said appellant without its consent, but it desires to and will, if protected by a restraining order, lay its said tracks up to the rails of said appellant, and between the same at right angles, therewith forming what is known as "a jump crossing;" that such crossings are in common use by street railway companies; that it will in no manner interfere with, retard or endanger the running of trains by said appellant, nor will they in any manner interfere with or restrict its use of said property or lessen the value thereof. Prayer that the appellant be restrained from doing the acts complained of until the further order of the court, and on the final hearing that appellant be perpetually enjoined.
It is the settled law of this State that the public takes only an easement in the streets of a city or town, and if a steam railroad company lays its tracks upon such streets the abutting owner of the fee whose title extends to the center of the street is entitled to recover damages. Terre Haute, etc., R. R. Co. v. Scott, 74 Ind. 29; Eichels v. Evansville St. R. W. Co., 78 Ind. 261; Cox v. Louisville, etc., R. R Co., 48 Ind. 178; Sharpe v. St. Louis, etc., R. W. Co. 49 Ind. 296; Ross v. Faust, 54 Ind. 471; Nelson v. Fleming, 56 Ind. 310; Anderson, etc., R. R. Co. v. Kernodle, 54 Ind. 314; Roelker v. St. Louis, etc., R. W. Co. 50 Ind. 127. The basis upon which this rule rests is that the appropriation of the soil over which a street passes for the construction, operation, and maintenance of a steam railway is a new or additional appropriation to that of the easement granted to the public which entitles the abutting owner to such damages as he may sustain thereby. Cox v. Louisville,...
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