Appeal from Circuit Court, La Grange County; James S. Dodge, Judge.
MONKS, J.
It appears from the record that appellee in 1909 investigated the grade crossing of appellant over the highway running north and south through the town of Topeka, La Grange County, Ind., and made an order recommending that said appellant railroad company within 90 days commence and complete the necessary work to separate the grade of the railroad and the grade of said highway at said crossing, and that this separation be made by constructing said highway under the grade of said railroad, so that “an overhead clearance of at least fourteen feet shall be provided, and so that the roadway so constructed shall be fifteen feet on each side of the center thereof.” A copy of this order was served upon appellant September 3, 1909. Appellant failed and refused to construct said crossing in the town of Topeka and to obey said order of appellee. Afterwards, on December 22, 1909, appellee commenced this action to compel appellant to construct said highway crossing as requested in said order. It appears from the complaint that appellant owns and controls a line of railroad extending from the city of Detroit, Mich., to the city of Chicago, Ill., that said line of railroad runs across the townships of Eden and Clear Spring, in La Grange county, Ind., and through the town of Topeka, which lies partly in Eden township and partly in Clear Spring township in said county. It is alleged in the complaint, among other things, that “plaintiff shows the court that defendant is now operating said line of railway, and is, and for a long time has been, engaged in running upon and over said railway through the said village of Topeka a large number of trains every day; that it now runs, and for a long time past has run, over its said railway, through said village of Topeka, 20 trains within every 24 hours; that under defendant's present schedule it operates over said road through said village 5 passenger trains every day at a speed of from 40 miles to 60 miles per hour without stopping any of said trains at said village, and 10 freight trains at the rate of 30 miles per hour, without stopping any of said trains at said village. Plaintiff shows the court that upon and along the section line extending north and south between the said section 31, township 36 N., range 9 E., and section 36, township 36 N., range 8 E., extending north and south through the said village of Topeka, and across defendant's said railroad and right of way is a public highway, which highway is the main thoroughfare for travel between the cities of La Grange and Ligonier, and for all of the surrounding country in passing north of said railroad track to the village of Topeka, and the town of Ligonier, and for all of the surrounding country south of said railroad track to the village of Topeka and the town of La Grange; that such highwayis much traveled, and is used by many hundreds of teams and vehicles and by travelers driving such teams every day; that said highway constitutes the sole means of communication between the north part and the south part of the village of Topeka, and is the only street in said village which crossed defendant's railroad track; that said village of Topeka has a population of about 700 inhabitants, of whom more than three-fourths in number, to wit, 550, live north of said defendant's railroad track, and the remainder, to wit, 150, live south of said railroad track; that in said village on the south side of said railroad track are located a gristmill which buys a large amount of grain every year, to wit, of the value of $5,000, and *** elevators which buy and ship from said point a large amount of grain every year, to wit, of the value of $200,000; that said grain is hauled in from the surrounding country, and, in order to reach said gristmill and elevators, the owners thereof are compelled to haul it upon said highway across defendant's said railroad tracks; that in said village of Topeka there is located a stockyard which ships therefrom each year animals of the value of $125,000, which animals are brought in from the sorrounding country by the producers thereof, and, to reach the stockyards, must be and are hauled or driven upon and along said highway across said railroad; that at said village there is located a creamery which buys cream and butter fat from the producers in the surrounding country of the value of $40,000 each year, all of which the producers are compelled to and do haul upon said highway across said railroad; that there is a coal and lumber yard at said village which sells coal and lumber each year of the value of $30,000 to consumers in the surrounding country, all of which the owners are compelled to and do haul upon said highway across said railroad track; that there is in said village a schoolhouse at which there is a daily attendance of 200 children during eight months in each year, and that of these children more than one-third in number, to wit, 75, are compelled to and do pass along said highway across said railroad track to reach said schoolhouse from their homes, and many of them, to wit, 35, live in the country at a distance from the schoolhouse, and are compelled to and do each day drive over said railroad crossing upon said highway in covered vehicles twice each day; that in said village of Topeka there is a library building containing a lecture parlor in which are conducted respectively, a lyceum and a lecture course to which a large number of persons, to wit, 100 persons, resort 25 times during each year, and are compelled to and do cross said railroad track in the night upon said highway in passing to and from their respective homes; that said village contains a theater and 15 stores and mercantile business which supply entertainment and merchandise for all the surrounding country, and are visited by a large number of persons, to wit, 200 persons, every day, who are compelled to, and do, cross said railroad track on said highway in passing to and from their respective homes; and plaintiff avers that said crossing is used for travel upon said highway across said defendant's railroad more than 500 times every day by persons who necessarily pass over said railroad in going from one part of the village of Topeka to another part thereof. Plaintiff shows the court that from said crossing to the next highway crossing over said railroad on the east is a distance of one mile, to the next highway crossing over said railroad on the west is a distance of one mile, and that in that entire distance of two miles between said crossings there is no other highway or means whatever by which persons north of defendant's railroad can pass to the south side thereof, or by which persons south of said railroad track can pass to the north thereof, except along said highway and over said crossing in said village of Topeka, on the aforesaid highway. Plaintiff alleges that defendant's depot stands on the north side of said railroad track, 124 feet west of the center of the said highway, and that the depot platform extends to, and for a distance of 17 feet into, said highway; that defendant's switchyards are near said highway, to wit, at a distance of 500 feet west of said crossing, and that all of defendant's trains running in a western direction which stop at said town of Topeka, to wit, 5 trains every day, are stopped on said railroad in such a manner that they extend across said highway and obstruct and prevent travel thereon, and that defendant repeatedly had, and continuously at least once every day does, stop a local freight train upon said crossing and obstruct the same for a long time, to wit, 15 to 30 minutes; and defendant thereby often has and continuously does obstruct so many as a dozen teams and wagons, and travelers driving the same and seeking to travel on said highway over said crossing for such a period of time. Plaintiff alleges that defendant has neglected and refused, and now neglects and refuses, to restore said highway intersected by its road to its former state, or in a sufficient manner not to unnecessarily impair its usefulness, and to construct its road upon and across said highway so as not to interfere with the free use of the same in such manner as to afford security for life and property; but plaintiff alleges that defendant has constructed and now maintains its said railroad and tracks in, upon, and across said highway and on an embankment of great height, to wit, the height of 10 feet above the level of said highway on either side; that it had constructed and now maintains a steep grade leading up from said highway on either side to the top of said embankment and to the crossing over its said track; that said highway is 60 feet wide, and that defendant has built and now maintains a crossing over its said railroad, and an embankment and grade leading up thereto from either side, of the width of only 20 feet wide; that the top of said embankment is higher than the eyes of a person riding in a wagon or buggy upon and along said highway, and so high that a person driving along said highway toward said crossing cannot see a traveler driving toward said crossing upon the highway from the opposite direction until he has reached the top of said embankment, and by reason of such fact, and the existence of the narrow crossing as above stated, travelers frequently meet each other at the top of said embankment upon defendant's track in such a way that it is very difficult for their vehicles to pass...
