Town of New Castle v. The Lake Erie And Western Railroad Co.
| Decision Date | 06 June 1900 |
| Docket Number | 18,743 |
| Citation | 57 N.E. 516,155 Ind. 18 |
| Parties | Town of New Castle v. The Lake Erie and Western Railroad Company et al |
| Court | Indiana Supreme Court |
From the Hancock Circuit Court.
Affirmed.
M. E Forkner, E. Marsh and W. W. Cook, for appellant.
J. B Cockrum, E. H. Bundy, W. A. Brown and W. E. Hackedorn, for appellees.
Suit by appellant to compel appellees to remove their railroad tracks from a street. The complaint in substance alleges that Locust street as originally platted was fifty feet wide and ran north and south from the north line of the original plat of the town of New Castle to Broad street, which was the second cross-street south; that Locust street has been continuously, for more than sixty-five years, opened, improved and maintained as a public street of the town; that the appellees and their grantors without right entered upon the street and constructed and maintained and appellees now maintain and operate a permanent side-track in and along the east side of the street from its northern terminus to Broad street; that they without right constructed and now maintain a permanent side-track from the northern terminus of Locust street, crossing the alley entering Locust street at the northern terminus, and running south bearing to the west, along the west side of Locust street to within the limits of the street, a distance of 350 feet; that, by the construction and maintenance of the side-tracks, the northern terminus of the street and the alley entering therein are wholly obstructed; that appellees use the tracks for switching, yard, and storage purposes, standing their cars across the alley and encroaching upon Locust street, limiting its width by the extent of the widths of the side-tracks; that the side-tracks constitute a permanent and unlawful obstruction of Locust street and the intersecting streets and alleys, and are a nuisance to the citizens of the town and the public in general, and by reason thereof the street can not be properly improved and can not be used for the ordinary purposes of a street; that appellees have been duly notified to remove their tracks without the limits of the street but have failed and refused to remove them, and claim the right to maintain their tracks within the limits of the street and to use the same and appropriate the street to their exclusive use, to the injury of all the citizens of the town and the public generally; that to allow their tracks to remain in the street will permanently obstruct the street and the travel thereon and will be a permanent and lasting injury to the general public and the citizens of the town. Answer in general denial and two affirmative paragraphs. Demurrer to each affirmative answer overruled. Reply in denial. Trial by court. Special finding of facts and conclusions of law. Exceptions reserved to each adverse ruling. The errors assigned are: Overruling appellant's demurrers to the affirmative answers; overruling motion for a new trial; and that the court erred in its conclusions of law stated on the special finding of facts.
The second paragraph of answer avers, "that appellees, for more than thirty years, have used and maintained the side-tracks and switches named in the complaint by leave and license of the town of New Castle and have expended large sums of money in building, maintaining and equipping said side-tracks and switches with full knowledge and consent of the plaintiff and without objection on her part." Appellant claims that this answer does not meet the complaint, because it neither denies nor justifies the use of the tracks "for switching, yard, and storage purposes". The complaint shows that the town demanded that appellees remove their tracks from the street, and that appellees refused because they claimed to have lawful right to maintain their tracks in the street. The complaint does not show any use of the street for switching, yard, and storage purposes that would necessarily be unlawful except on the basis that appellees have no right in the street at all. If appellees had a valid right to use the street, the town's governmental and police powers would not be abated nor diminished. Elliott on Railroads § 1082. The complaint, however, is not based on appellees' refusal to obey regulations of the use, but is founded on the claim of appellees' usurpation. Therefore, this paragraph is not a partial answer.
In substance the third paragraph of answer is: That in 1868, appellees' predecessors constructed a side-track, 300 feet in length, along the west side of Locust street from the main line of appellees' railroad, at the northern terminus of Locust street, to Vine street, which was the first cross-street south; that at the same time appellees' predecessors built another side-track along the east edge of Locust street from the north end of Locust street, where it crosses appellees' main track, south to the north line of Broad street; that in order to build this track they were compelled to and did build a high embankment on and along the east side of Locust street and lay its tracks on the embankment thus built; that the track was laid in 1866 and forms the west bank of a ravine; that they had since that time kept up and maintained the side-tracks at a large expenditure of money without any objection by appellant; that the side-tracks are not now and never have been any impediment or obstruction to the free use of Locust street by the general public; that the side-tracks were built at a great cost and have been maintained and repaired at a large expense each year since; that they are now and always have been necessary to the proper management of appellees' road and its business; that for more than thirty years appellant has stood by with full knowledge of all the facts without any objection.
The court found the existence of Locust street as stated in the complaint; that the street was laid out on the edge of a ravine; that in 1868 appellees' predecessor built a side-track along the east side of Locust street, and within the platted limits thereof, by constructing an embankment from ten to twelve feet high, which was on a level with the street and formed a bed and retaining wall for the street; that this east side-track did not encroach upon the traveled portion of the street and has never interfered with nor diminished the travel upon the street or the means of travel thereon; that in 1868 appellees' predecessor built a depot and platform, upon piling, in the ravine, just east of this east side-track, which has been continuously used as a freight depot since 1869; that about the same time appellees' predecessor constructed its west side-track, but no part thereof is now or ever has been within the limits of Locust street except forty feet of the east rail at the south end; that all that part of Locust street lying west of the west rail of the east side-track is of the average width of thirty-six feet and is convenient for travel; that the side-tracks were constructed at a cost of $ 2,000 and the depot $ 800 and have been maintained at an annual expense of $ 280; that the side-tracks have been used in the ordinary course of business and in a reasonable and proper manner; that the side-tracks and depot have been regularly listed for taxation for State, county and municipal purposes; that neither the town nor any of its officers has ever made any objection to the side-tracks being so located or to the uses made thereof, but the town and its officers have stood by for more than thirty years, having full knowledge that the companies had expended their money in constructing and maintaining the side-tracks and depot, and exacting municipal taxes thereon. On these facts, the court concluded that the law was with the appellees.
Appellant claims that, under the third paragraph of answer and the finding of facts, appellees have no right to maintain their side-tracks in Locust street. Appellees contend, (1) that the statute for the organization of railroad companies gives them the right to go upon streets without the consent of the municipality, and (2) that, if a grant from the municipality were necessary, appellant is estopped from denying that a grant exists.
The fifth subdivision of § 5153 Burns 1894, § 3903 R S. 1881 and Horner 1897, relating to the general powers of railroad companies, reads: "To construct its road upon or across any stream of water, water course, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the...
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