The Lake Erie And Western Railroad Co. v. Cluggish
| Decision Date | 21 January 1896 |
| Docket Number | 17,334 |
| Citation | 42 N.E. 743,143 Ind. 347 |
| Parties | The Lake Erie and Western Railroad Co. v. Cluggish et al |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
Judgment is affirmed.
W. E Hackedorn, J. B. Cockrum, J. Brown and W. Brown, for appellant.
M. E Forkner, for appellees.
This was a suit by the appellees, Robert Cluggish, as commissioner of drainage, and Frederick J. Smith, contractor for the construction of an extensive drain, including the dredging of Buck creek, in Henry and Delaware counties, to enjoin the appellant from interfering with and preventing the appellees in the prosecution of said work, from taking from the bed of said stream, within the line of said work, a bent supporting in part, a wooden bridge of the appellant spanning said stream, and in so far breaking the span of said bridge as to permit the dredge, employed in said work, to pass along said stream and cut through the channel at the point therein crossed by said bridge. The petition alleged all of the facts essential to the jurisdiction of the circuit court over the subject-matter and the parties, including the appellant, in ordering the construction of said drain, and that, upon the report of the commissioners of drainage, fixing the benefits of the appellant at $ 225.00, the appellant filed a remonstrance, among other grounds alleging that in assessing benefits and injuries or damages had and suffered by it, no allowance was made for damage to it of the cost and expenses to which it would be put by reason of making a proper passage way under said track for said improvement, which, it was alleged therein, would amount to more than one hundred and twenty-five dollars. It was further alleged in the complaint that upon the final hearing of the issue tendered by said remonstrance the court found and adjudged that the benefits so assessed against the appellant be reduced $ 125.00, upon the agreement of the parties. There were also allegations as to the necessity for the removal of said bent that the dredging might be done where it stood; that the dredge, necessarily employed in said work, could not pass under said bridge, and that the appellant declined to make the removal of said bent or said bridge and kept guard against the removal thereof by the appellees.
Issue was made upon the complaint, and was tried by the court, resulting in a decree enjoining the appellant from obstructing said work, delaying the prosecution thereof or the crossing of the right of way of the appellant with the dredging machine used in said work. The errors assigned call in question the rulings of the trial court (1) in overruling a demurrer to the complaint, (2) in overruling the appellants' motion for a new trial, and (3) in overruling the appellants' motion to dissolve the injunction.
The right is asserted by the appellant, and conceded by the appellees, that the railway company, in the first instance, should be permitted to make such temporary or permanent changes in its bridge as may be necessary in the proper prosecution of the work in question. For the company it is insisted that the cost of any such change is not properly within the statutory causes for remonstrance against any such work, and could not, therefore, have been adjudicated in the proceedings by which the drainage was established; and further, that, not having been adjudicated, and the contractor, being obliged by his contract to construct the drain, including the temporary disturbance of bridges, at his own expense, was required to pay the railroad company its proper costs and charges for the necessary removal and replacement of such bridges. On behalf of the appellee it is insisted that, under the statute, 2 R. S. 1894, section 5153, subd. 5, the company's right to maintain the bridge across the stream was burdened with the duty of so constructing its bridge as not to impair the free use of the stream; that such duty is a continuing one, and requires the company to so care for its bridge as to permit the public to go forward with the drain without incurring the cost of so caring for the bridge; and it is further insisted that the cost of such care to the railway company is not only within the statutory causes for remonstrance, but that the same was made and determined as an issue in the drainage proceedings, thereby precluding the appellant.
In the recent case of Lake Erie, etc., R. W. Co. v. Smith, 61 F. 885, involving the same parties and the same controversy that we have here, Judge Baker held that the adjudication of the circuit court upon the question of damages to the appellant was conclusive against collateral attack. It was there further said:
Whether this continuing duty involves the requirement that the company shall, at its own expense, so alter its bridges as to meet the advancing needs of the public, or whether the requirement is for the protection of the public against exclusive occupancy by railways against new public uses, we do not regard as necessary to decide, since it is our conclusion that this expense was allowed to the appellant in the proceedings for the establishment of the drain. By the drainage act, R. S. 1894, section 5625, and by the fifth and seventh specified causes of remonstrance therein, it is provided that objection may be made that the land assessed as benefited "will not be affected, nor benefited to the extent of the assessment," and that the lands "will be damaged by the construction of the proposed work." It is, by said section, further provided that, upon the hearing, the court may, as justice requires, diminish the assessments by giving damages. As we have seen, the complaint alleged that the appellant's remonstrance asked a reduction of the assessed benefits upon the ground that in the assessment no allowance had been made for the damage it would sustain from the cost and expenses of making a proper passage way under said track for said improvement, which it was alleged would amount to more than $ 125.00.
Thus it is seen, the company sought an allowance, and, by agreement of the parties as alleged, obtained it, for the cost and expenses of making a proper passage-way under said track for said improvement. The assumption of counsel that benefits and damages may not at one time exist, with reference to the company's property, is, we think,...
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Lake Erie & W.R. Co. v. Cluggish
... ... H. Bundy, Judge.Suit by Robert Cluggish, drainage commissioner, and another, against the Lake Erie & Western Railroad Company, to enjoin said defendant from interfering with the alteration of its bridge. From a judgment rendered, defendant appeals ... ...