Wabash R. Co. v. Jackson

• Decision Date: 22 November 1911
• Docket Number: No. 21,727.,21,727.
• Citation: 176 Ind. 487,96 N.E. 466
• Parties: WABASH R. CO. v. JACKSON et al.
• Court: Indiana Supreme Court

176 Ind. 487

96 N.E. 466

WABASH R. CO.

v.JACKSON et al.

No. 21,727.

Supreme Court of Indiana.

Nov. 22, 1911.

On petition for rehearing. Overruled.

For former opinion, see 95 N. E. 311.

Edwin P. Hammond, Dan W. Simms, William V. Stuart, and Allison E. Stuart, for appellant. Murphy & Todd, for appellees.

MYERS, J.

Appellant seeks a rehearing in this case, or in the alternative a modification of the judgment so that it may be left to appellant to construct such bridge or culvert as it sees fit, provided it be sufficient, on the ground that it will be presumed that it will construct a sufficient bridge, upon the theory that the commissioners of drainage and the court had no power or authority to define the kind and dimensions of the bridge to be placed over the ditch.

There was no offer, as is now made, to construct a sufficient bridge or culvert; but appellant stood upon the proposition that it was not required to construct any bridge or culvert. There was no motion to strike out the recommendation of the commissioners as to the bridge to be built by appellant; but appellant formed an issue, and tried the question of the required capacity of the bridge, and the finding was against it upon the question now urged of there being no necessity for so large a structure. There was no motion to modify the judgment, though in face of the finding as to the necessary size of the bridge the finding does not warrant modification. Appellant insisted and sought to show that a bridge of much less dimensions and cost would be sufficient, and the court did reduce the size and estimated cost of the bridge and found that a bridge of certain dimensions would be sufficient, which was necessarily a finding that a lesser construction would be insufficient.

We find no reason to modify our former holding as the record comes to us, and the petition for a rehearing is overruled.