The Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Christie
| Decision Date | 19 December 1912 |
| Docket Number | 22,075 |
| Parties | The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Christie |
| Court | Indiana Supreme Court |
From Putnam Circuit Court; J. M. Rawley, Judge.
Action by George W. Christie against The Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.)
Affirmed.
F. L Littleton and Enloe & Pattison, for appellant.
Thad. S. Adams, for appellee.
Appellee sued to recover damages from appellant for injuries to his property occasioned by the closing of an alleged highway in the town of Hadley, Indiana. The complaint is in one paragraph. The court overruled a demurrer thereto, and appellant filed its answers in general denial and setting up affirmative matters. Appellee's demurrer to the second paragraph of answer was overruled and a general denial in reply was filed. The issues were tried by a jury, which returned a verdict of $ 1,150 for appellee, for which sum the court rendered judgment.
Appellant assigns as error, (1) overruling the demurrer to the complaint, and (2) overruling its motion for a new trial.
The material facts are as follows: In the year 1869 appellant's predecessor, by a condemnation proceeding in the Hendricks Circuit Court, acquired a strip of land ninety-nine feet wide across the south half of the southeast quarter of section fourteen, township fifteen north, range two west, in Hendricks county, Indiana, to be used as a right of way for railroad purposes. In 1870, the Indianapolis and St. Louis Railway Company acquired from William Plasters and wife by deed a strip of land twenty-five feet wide on the north side of its right of way in the town of Hadley, Indiana. Two public highways were opened in 1870, in a north and south, and an east and west direction, crossing each other on appellant's right of way immediately west of said town of Hadley. Appellant's predecessor located its station on the north side of its tracks at a point 300 feet east of the north and south highway, and erected thereon a building which it used continuously as a depot and freight office until 1895, when it was destroyed by fire. Appellant's predecessor opened the twenty-five foot strip of land purchased from William Plasters and wife as a road leading from the north and south highway to and past the station to a place where two mills were located east of its station. At this place said company constructed a crossing over and across its right of way and tracks in order that the public might reach the mill located on the south side of its tracks. This strip of land was openly and continuously used as a highway by the citizens of Hadley from the time it was opened to the public in 1870 until 1906, when appellant created and maintained thereon the obstruction complained of in this action. In 1894, Alonzo L. Wheeler, who owned the land north of and adjoining this twenty-five foot strip of land, laid out and platted the Wheeler addition to the town of Hadley. Appellee purchased lot No. 6, in said Wheeler addition, and erected thereon, and fronting on the twenty-five foot strip of land in question, a large two-story frame building, fitting up the second story as a dwelling house, and the lower floor was converted into a storeroom, in which he engaged in the mercantile business. The only way of reaching appellee's store and the company's depot and freight house was by passing over the highway located on said strip of ground. This ground was used by appellant, its predecessor and the general public as a highway for more than thirty-five years, with the full knowledge, consent and acquiescence of appellant and its said predecessor, and said appellant had knowledge of the platting and recording of the said Wheeler addition to the town of Hadley, and had full knowledge that appellee, and the various other purchasers of lots in said addition, were erecting dwellings, and that appellee was erecting a business house thereon, and well knew that said public highway located on the aforesaid strip was the only way of ingress to and egress from appellee's residence and business house. From 1870 until 1906 the general public used said strip of land as a public highway without objection or interference from appellant railway company. During this time the road supervisors and town authorities worked and improved the highway on the twenty-five foot strip of land in question, with the other highways and streets of the town, without objection from appellant. In 1906 appellant closed said highway and constructed thereon an embankment from fifteen to twenty feet high, and located its tracks on it. This closed the highway, cut off appellee's only way of ingress and egress, destroyed his business, and greatly reduced the value of his property.
Appellant contends that appellee's complaint proceeds on the theory of dedication of the twenty-five foot strip of ground for public use, and that it fails to allege sufficient facts showing such dedication. The complaint alleged briefly and concisely facts sufficient to constitute a cause of action, and the demurrer thereto for insufficient facts was properly overruled.
The true and vital question is, Was the twenty-five foot strip of ground a public highway? If so, and facts are sufficiently alleged and proven to show it to be, then, "no matter whether it be established by prescription, or by dedication, or under the right of eminent domain, it is a highway if there is a general right to use it for travel." Elliott, Roads and Sts. (2d ed.) § 3. See, also, Houlton v. Carpenter (1902), 29 Ind.App. 643, 64 N.E. 939.
A fair definition of what constitutes a dedication is stated in 1 Bouvier's Law Dict. (15th ed.) 492, thus: "An appropriation of land to some public use made by the owner and accepted for such use by and on behalf of the public."
"Dedication is a gift of land by the owner for a way, and an acceptance of the gift by the public, either by some express act of acceptance, or by strong implication arising from obvious, convenient or frequent and long continued use, repairing, lighting, or other significant acts of persons competent to act for the public in that behalf." 2 Words and Phrases, 1912. See, also, Hemphill v. City of Boston (1851), 62 Mass. 195, 54 Am. Dec. 749.
Appellant's predecessor was a corporation duly organized, an artificial being, created by the law for a certain purpose, and subject to the same laws as a natural being. As such it had the power to dedicate the twenty-five foot strip of ground in controversy to the general public as a highway in the same manner as an individual. Whether or not the strip of land was so dedicated, was a fact to be determined by the jury, which found that said tract had been so dedicated.
As in this case, a railroad corporation is and must be upon the same footing as an individual. It can dedicate its ground to public uses, and it may stand by and allow its land to be used for public purposes, without making objections, until the public has acquired easements and rights therein which are beyond the power of the railroad company to revoke. The doctrine of waiver and estoppel applies to a railroad company the same as to an individual. Pittsburgh, etc., R. Co. v. Town of Crown Point (1898), 150 Ind. 536, 50 N.E. 741.
This court, in City of Indianapolis v. Kingsbury (1885), 101 Ind. 200, 213, 51 Am. Rep. 749, said: ...
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