The City of Fort Wayne v. The Fort Wayne and Jackson Railroad Company
| Decision Date | 23 November 1897 |
| Docket Number | 18,135 |
| Citation | 48 N.E. 342,149 Ind. 25 |
| Parties | The City of Fort Wayne et al. v. The Fort Wayne and Jackson Railroad Company |
| Court | Indiana Supreme Court |
From the Whitley Circuit Court.
Affirmed.
W. H Shambaugh and Henry Colerick, for appellants.
John Morris, Robert C. Bell, James M. Barrett and Samuel L Morris, for appellee.
The appellee sought and obtained, in the lower court, an injunction denying the right of the appellants, the city of Fort Wayne and her officers, to extend Fourth street in said city across the switch yards and tracks of the appellee, The Fort Wayne and Jackson Railroad Company. The city had, by proceedings under sections 3623, 3629 et seq., Burns' R. S. 1894, established the extension and, at the time of the filing of this suit, was about to open the street across the appellee's right of way, switch yards, and tracks, and was engaged in removing buildings, filling approaches, and constructing said street, but in said proceedings she had wholly failed to give the appellee any notice thereof, and appellee was not a party to, was not named in, and was not present or represented at or in any of said proceedings; nor was any question of the appellee's damages considered in said proceeding, and no damages were assessed, paid or tendered to the appellee, although the proposed extension would result in damage to the appellee in the sum of many thousands of dollars, in the taking of its property and the loss of its uses.
On behalf of the appellants, it is insisted that the statute, section 3636, Burns' R. S. 1894, afforded a legal remedy to the appellee, and that, therefore, equity would not extend its remedy of injunction, and, it is further insisted, that section 3644, Burns' R. S. 1894, expressly denied the right of injunction. For the appellee, it is contended that the absence of notice rendered the proceedings void, and that the taking of the property was properly enjoined.
It is a rule of the constitution that "property shall not be taken by law without just compensation; nor, except in case of the state, without such compensation first assessed and tendered." Section 66, Burns' R. S. 1894. The statute under which the condemnation in question was sought does not obviate this constitutional guaranty, but prescribes a method of compliance therewith.
The federal constitution requires that the property of the individual shall not be taken without due process of law, and notice, under this requirement, is essential. The statute under consideration provides for a compliance with this requirement.
In construing the statute, therefore, we must read it as if these constitutional provisions were a part of it, and as if it did not narrow, but fully supplied these constitutional guaranties.
It is not denied, and without doubt could not be, that in the absence of sections 3636 and 3644, supra, injunction would lie to stay the opening of the street across the yards. Section 3636, supra, provides that Section 3644, supra, provides that "If the commissioners make a report to the common council, as herein provided, no injunction shall lie to restrain proceedings, unless the common council shall proceed to appropriate property upon which damages have been assessed, without first causing the same to be paid or tendered; but all other questions shall be raised and tried by appeal in cases where damages have been assessed, paid or tendered."
By the first of these provisions a remedy is given to one whose property has been assessed, but who has not been notified. This provision is upon the one element of...
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City of Ft. Wayne v. Ft. Wayne & J.R. Co.
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