Vandalia Railroad Company v. State ex rel. City of South Bend

• Decision Date: 23 February 1906
• Docket Number: 20,663
• Citation: 76 N.E. 980,166 Ind. 219
• Parties: Vandalia Railroad Company v. State, ex rel. City of South Bend
• Court: Indiana Supreme Court

76 N.E. 980

166 Ind. 219

Vandalia Railroad Company v. State, ex rel. City of South Bend

No. 20,663

Supreme Court of Indiana

February 23, 1906

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Action by the State of Indiana, on the relation of the City of South Bend, against the Terre Haute & Logansport Railway Company. From a judgment for plaintiff, defendant's successor in interest, the Vandalia Railroad Company appeals. Affirmed. (Appeal dismissed, 207 U.S. 359.)

Affirmed.

Samuel Parker, John G. Williams and Anderson, Du Shane &amp Crabill, for appellant.

Frank H. Dunnahoo and Harry R. Wair, for appellee.

OPINION

Montgomery, J.

Appellee brought this action against the Terre Haute & Logansport Railway Company for a writ of mandamus to compel said company to open, plank and make safe and convenient for travel the crossing of Calvert street over its right of way, tracks and yard in the city of South Bend. An alternative writ was issued, whereupon the defendant appeared, waived service, and filed its demurrer for want of facts to the application, the alternative writ and to the petition and writ. This demurrer was overruled, and a return filed to which appellee successfully demurred, and, defendant declining to plead further, judgment was rendered in favor of appellee as prayed.

Appellant alleges that by consolidation it has succeeded to the rights of the Terre Haute & Logansport Railway Company, and by proper assignments of error presents for review the action of the court in overruling the demurrer to the alternative writ, and in sustaining appellee's demurrer to the return.

The alternative writ set forth the following, among other facts: The city of South Bend is a municipal corporation of this State. The Terre Haute & Logansport Railway Company is a railroad corporation operating a line of railway from Bronson street in said city to the south corporation line. On November 10, 1884, said city by ordinance, a copy of which is filed with the complaint, granted to said railway company a franchise to operate its said road across the streets and alleys of the city. Said railway company accepted said franchise, and ever since has acted under the same. The express condition of said franchise was that wherever a street or alley of said city was crossed by said railroad it should be made to conform with the grade of such street or alley as then fixed or thereafter established, and so maintained by said company as to cause the least obstruction possible to the passage of persons and vehicles. Said railway intersects Calvert street, formerly known as Elmira street, a public highway of said city, and in use as such by the public, at a point particularly described. Said street is sixty feet wide, and the grade thereof has been established for more than four years, but said company has not opened its real property, right of way or tracks at the point of intersection or made the same conform to the grade of said street, but has refused and still refuses so to do. On December 18, 1903, said city notified said railway company to open up said intersection, and to plank the same, but said company refused and neglected so to do.

It was provided by section four of the franchise ordinance that if after notice the railway company failed to do the things required of it by the ordinance the same might be done by the street commissioner of the city, and the cost thereof, with twenty per cent penalty, recovered from the company in any court of competent jurisdiction.

Appellant argues that the passage of the franchise ordinance by the city and its acceptance by the railway company constituted a contract, that this action is founded upon such contract, and that duties of a corporation arising wholly out of contract relations will not be enforced by writs of mandamus. It is well settled that the use of writs of mandamus is limited to the enforcement of obligations imposed by law; and duties of a corporation arising wholly out of contract obligations, and not imposed by express law, or by the conditions of its charter, will not be enforced by such writs. State, ex rel., v. Trustees, etc. (1888), 114 Ind. 389, 16 N.E. 808; Indiana, etc., R. Co. v. Rinehart (1896), 14 Ind.App. 588, 43 N.E. 238; 19 Am. and Eng. Ency. Law (2d ed.), 742.

The general railroad act of this State grants to a railroad company power "to construct its road upon or across any * * * highway * * * so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner so as to afford security for life and property; but the corporation shall restore the * * * highway thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness." § 5153 Burns 1901, cl. 5, § 3903 R. S. 1881. It has been frequently held that under this statute a railroad company is required to make safe and convenient crossings at the intersections of all highways, whether the same were established and opened before or after the construction of the railroad. Louisville, etc., R. Co. v. Smith (1883), 91 Ind. 119; Lake Erie, etc., R. Co. v. Cluggish (1896), 143 Ind. 347, 351, 42 N.E. 743; Evansville, etc., R. Co. v. State, ex rel. (1898), 149 Ind. 276, 278, 49 N.E. 2; Egbert v. Lake Shore, etc., R. Co. (1893), 6 Ind.App. 350, 353, 33 N.E. 659; Baltimore, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 510, 519, 65 N.E. 508; Lake Erie, etc., R. Co. v. Shelley (1904), 163 Ind. 36, 41, 71 N.E. 151; 3 Elliott, Railroads, § 1102.

Section 5172a Burns 1901, Acts 1895, p. 233, § 1, is as follows: "That it shall be the duty of each railroad company whose road or tracks cross, or shall hereafter cross, any street, avenue or alley in any incorporated town or city in the State of Indiana; which said street, avenue or alley has been, or shall hereafter be, by addition, plat or otherwise, dedicated to the public use, to properly grade and plank or gravel its said road and tracks at its intersection with and crossing of said street, avenue or alley in accordance with the grade of said street or avenue, in such manner as to afford security for life and property at said intersection and crossing." It is thus seen that the duty which appellee seeks to have performed by this proceeding is one specifically enjoined by law and imposed by appellant's charter. The performance of a similar duty has been enforced in numerous instances by proceedings of this character. Indianapolis, etc., R. Co. v. State, ex rel. (1871), 37 Ind. 489; Evansville, etc., R. Co. v. State, ex rel. (1898), 149 Ind. 276, 49 N.E. 2; Chicago, etc., R. Co. v. State, ex rel. (1902), 158 Ind. 189, 63 N.E. 224; Chicago, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 237, 64 N.E. 860; Baltimore, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 510, 65 N.E. 508.

The provisions of the franchise ordinance requiring the railway company to make and maintain safe crossings were simply declaratory of the law as it existed independently of the city's enactment, and it cannot be fairly said that the omitted duty complained of was one growing wholly out of contract obligations. In granting a franchise to use its streets, alleys, or public places, the city exercises its delegated legislative powers, and for that purpose could not by contract barter away its future legislative control over such highways and places. It is the plain and continuing duty of a city to prevent the unnecessary obstruction of its streets, and to see that the same are kept in good order and safe for use by the public. The railway company, a quasi-public corporation, is created to facilitate and not to impede travel, and from its nature as well as charter obligations the duty arises of keeping its intersections with highways in good repair and in condition for safe and convenient use by the public. In the case of Indianapolis, etc., R. Co. v. State, ex rel. (1871), 37 Ind. 489, 495, this court disposed of a contention like that now made, in the following language: "But this ordinance is not a contract between the railroad company and the city, but simply a grant of the right of way upon certain conditions and duties subsequent, to be performed by the company. And the proper means by which a corporation may be compelled to perform a plain duty--and the duty is plain in this case--is by a writ of mandate." Chicago, etc., R. Co. v. State, ex rel. (1902), 158 Ind. 189, 63 N.E. 224. See, also, Seymour Water Co. v. City of Seymour (1904), 163 Ind. 120, 70 N.E. 514, and cases cited.

It is next urged that the relator could have constructed the crossing and brought an action for the cost of the same and the penalty as provided in the ordinance, and thereby have secured complete and adequate redress without resort to this extraordinary remedy. It is undeniable that either under the provisions of the ordinance or of §§ 5172a-5172e Burns 1901, Acts 1895, p. 233, the city might have pursued the course suggested; but the query remains whether such a remedy must be held adequate and exclusive. This question has been answered in the negative in the case of Indianapolis, etc., R. Co. v. State, ex rel. (1871), 37 Ind. 489, 494, the court saying "Can it be said, then, that this would be an adequate remedy? It would seem to us not. Or shall it be said that it is the duty of the city to fill up and grade the streets and alleys so as to make them convenient for passage, etc., at her own expense, in the first instance, and then be compelled to bring an action against the railroad company for reimbursement? If one have a right of action for a grievance against another, either for damages or for the specific performance of an act, it is certainly not an adequate remedy to him, to be compelled in the first instance to lay...