The Terre Haute And Logansport Railroad Co. v. Bissell

• Court: Indiana Supreme Court
• Writing for the Court: Howk, C. J.
• Citation: The Terre Haute And Logansport Railroad Co. v. Bissell, 9 N.E. 144, 108 Ind. 113 (Ind. 1886)
• Decision Date: 26 October 1886
• Docket Number: 12,636
• Parties: The Terre Haute and Logansport Railroad Company v. Bissell

9 N.E. 144

108 Ind. 113

The Terre Haute and Logansport Railroad Company v. Bissell

No. 12,636

Supreme Court of Indiana

October 26, 1886

From the Marshall Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrers to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.

J. G Williams, for appellant.

J. D McLaren, M. A. O. Packard and O. M. Packard, for appellee.

OPINION

Howk, C. J.

Errors are assigned here by appellant, the defendant below, calling in question the decisions of the circuit court in overruling (1) its demurrer to the first paragraph of appellee's complaint, (2) its demurrer to the second paragraph of such complaint, and (3) its motion for a new trial.

This suit was commenced on the 29th day of September, 1884. In the first paragraph of his complaint appellee alleged that he then was, and for five years last past had been, the owner in fee simple of lots numbered from 11 to 18, both inclusive, in Wilson's subdivision of out-lot No. 18, in Merrill's addition to the city of Plymouth, in Marshall county; that such lots abutted on a public street of such city, known as First street, sixty feet wide, for the distance of ----- hundred feet along the west line of such street; that, as the owner of such lots, appellee was also the owner in fee simple of the west thirty feet of such street immediately in front of his lots, extending from the front line of such lots to the center or middle line of such street; that, during such five years, appellee had made valuable and lasting improvements, of the value of $ 5,000, on such lots, in the erection of a dwelling-house wherein he and his family resided; that within the last two years ingress and egress to and from appellee's lots, and his residence and other buildings thereon, had been obstructed and prevented on the east side thereof by two railroad tracks constructed upon and along said street, and in constant use by appellant, in moving and transporting its cars and locomotives on and along such tracks on said street, in front of and near to appellee's lots and residence; that by the construction and constant use of such railroad tracks on said street in front of and near to appellee's residence property, appellant had caused such an obstruction to the free use of said property as essentially to interfere with the comfortable enjoyment of life therein, and the emission of large volumes of smoke, cinders, dust and other offensive matter from appellant's locomotives, which were constantly moving over said tracks, was offensive to appellee and his family; that, within two years last past, appellant unlawfully and without right, and without having first caused appellee's damages to be assessed and tendered to him, and without his consent, entered upon and laid down two railroad tracks on that portion of said street lying in front or on the east side of appellee's said lots, and maintained and used such tracks for the passage of locomotives and cars thereon, and all without his consent.

The second paragraph of the complaint does not differ materially from the first paragraph, in its statement of the facts constituting appellee's supposed cause of action against the appellant.

To each of the paragraphs of appellee's complaint appellant's demurrer, for the alleged insufficiency of the facts therein to constitute a cause of action, was overruled by the court.

It is earnestly contended by appellant's learned counsel, that the court below erred in each of these rulings. It will be observed that while appellee carefully alleged that he was the owner in fee simple of the west half of First street, in the city of Plymouth, extending from the front or east line of his lots eastwardly thirty feet to the middle or center line of such street, yet he nowhere averred, in either paragraph of his complaint, that, in the construction and use of its two railroad tracks on such street, appellant had entered upon, occupied or used, by either of such tracks, that part of such street of which he claimed to be such owner. For the want of such an averment, appellant's counsel earnestly insist that each paragraph of appellee's complaint was insufficient to withstand its demurrer thereto.

This objection seems to be well taken, as to each paragraph of the complaint. It must be assumed, in the absence of any averment to the contrary, that appellant had entered upon and laid down its two railroad tracks within the limits of First street, with the consent and permission of the common council of the city of Plymouth. If such city was incorporated under the general law of this State, for the incorporation of cities, as we must assume it was in the absence of any showing to the contrary, by the express provisions of that law, section 3161, R. S. 1881, in force since March 14th, 1867, its common council had exclusive power over its streets, alleys and highways. It is settled by our decisions, that the power of a city, incorporated under our general laws for the incorporation of cities, over its streets and alleys, includes or extends to many other uses than those of ordinary travel on public highways. Thus, in Cox v. Louisville, etc., R. R. Co., 48 Ind. 178, it is said: "So far as the highway, street, or easement is concerned, as the municipality has complete control thereof, it may, we presume, make or authorize any use of the street which will not essentially change and divert it from its intended use as a public highway." But this power of the common council of a city, over a street as a highway, can not, of course, affect the rights of the individual owner of the fee in the soil, over which the highway or street passes. "This right of the individual, according to the case of Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467, 'is as much property as the lot itself.' As was said in The Common Council, etc., v. Croas, 7 Ind. 9, it is a 'right distinct from the claim of the public, which even the Legislature could not take away, unless to appropriate to a public use.' In which case, of course, compensation must be made." City of Logansport v. Shirk, 88 Ind. 563; Baltimore, etc., R. R. Co. v. North, 103 Ind. 486, 3 N.E. 144.

Conceding in the case in hand, that appellee was the owner in fee simple of First street, in the city of Plymouth, from the eastern or front line of such lots to the middle line of such street, we can not presume in the absence of averment to that effect, in aid of the averments of appellee's complaint, that in the construction of its two railroad tracks, or in its use thereof by the passage over the same of its cars and locomotives, within the limits of First street, appellant had entered upon, occupied or used that part of such street, owned in fee simple by the appellee. The grievances of which appellee complained were not shown, by the allegations of either paragraph of his complaint, to be injurious to that part of First street, whereof he claimed to be the owner in fee simple. In the absence of any showing that the tracks of appellant's railroad were located, constructed...