Wabash Railroad Co. v. Ft. Wayne & Southwestern Traction Co.
| Decision Date | 05 June 1903 |
| Docket Number | 19,933 |
| Citation | 67 N.E. 674,161 Ind. 295 |
| Court | Indiana Supreme Court |
| Parties | Wabash Railroad Company v. Ft. Wayne & Southwestern Traction Company |
Rehearing Denied October 16, 1903.
From Wabash Circuit Court; H. B. Shively, Judge.
Injunction proceedings by the Ft. Wayne & Southwestern Traction Company against the Wabash Railroad Company. From an order granting a temporary injunction, defendant appeals.
Affirmed.
E. P Hammond, W. V. Stuart, D. W. Simms and J. D. Conner, Jr., for appellant.
Walter Olds and N. D. Doughman, for appellee.
Appeal by the Wabash Railroad Company from an interlocutory order of the Wabash Circuit Court granting a temporary injunction.
The suit was commenced in the Wabash Circuit Court. The brief of the appellant contains a very full and clear statement of the case from which we transcribe the following: The appellee claims that by virtue of certain condemnation proceedings in the court below, it acquired the right to cross appellant's railroad. The appellant avers (1) that the proceedings relied upon by appellee, as shown by its complaint and the evidence, are not sufficient to give it the right to cross, and (2) that, appellant having filed exceptions to the award of the appraisers, appellee is not entitled to cross until there shall have been a trial upon, and a disposition of, said exceptions.
Appellee's application for a temporary injunction was submitted to the court for hearing on the appellee's verified complaint and the affidavit of Roscoe D. Smith. The appellant introduced in evidence its verified answer. The court found in favor of the appellee, and granted a temporary injunction, to which order and proceeding the appellant excepted.
The errors assigned by the appellant are as follows: (1) The appellee's complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in each of its findings. (3) The court erred in each of its interlocutory decrees. (4) The findings, and none of the findings of the court, are sustained by sufficient evidence. (5) The interlocutory decrees of the court are not, and none of said decrees is, sustained by sufficient evidence. (6) The court erred in granting the appellee a temporary injunction against the appellant. (6 1/2) The court erred in sustaining the appellee's application for a temporary injunction. (7) The appellee was not entitled, and had no right, to put in its crossing over the appellant's railroad and right of way at the place mentioned in its instrument of appropriation, until a hearing, trial, and decision upon appellant's exceptions filed to the award of the commissioners.
All of the supposed errors could probably have been presented under the assignments that the complaint did not state facts sufficient to constitute a cause of action, and that the finding of the court was not sustained by sufficient evidence.
The appellee's verified complaint, which was introduced in evidence, averred that the appellee was, and for more than a year last past had been, a corporation duly organized, etc., and had been, and is now, engaged in the construction of an interurban street railroad from the city of Huntington to the city of Wabash; that appellee is authorized by the cities of Ft. Wayne, Huntington, and Wabash to operate its railroad by electricity; that, in order to construct and operate its said line of railroad from the said city of Huntington to the said city of Wabash, it became and was necessary to cross the right of way and tracks of the Wabash Railroad Company at grade, and to construct its railroad and railroad tracks across the right of way and tracks of said Wabash Railroad Company; that it has endeavored to purchase said right of way, and right to lay its tracks and construct its crossing across the right of way and tracks of said defendant, but was unable to agree with the said defendant as to the price thereof and the manner of such crossing; that thereupon, on the 7th day of May, 1902, it filed its instrument of appropriation in the office of the clerk of the Wabash Circuit Court, appropriating a strip of ground three rods wide off the south side of what was formerly used and occupied as the Wabash and Erie canal, where the same is crossed by the Wabash Railroad Company, defendant herein, in the southwest quarter of section thirty-eight, township twenty-eight north, of range eight east, in Wabash county, in the State of Indiana, appropriating to the use of the said plaintiff so much of said parcel of ground three rods wide across the right of way of said Wabash Railroad Company as is necessary for the purpose of constructing the railroad of said plaintiff with a single track across the right of way and tracks of the said Wabash Railroad Company where the same crosses what was formerly known, used, and occupied as the Wabash and Erie canal, as heretofore described, a plat of which crossing was filed with said instrument of appropriation, and that it duly notified the said defendant that it would, upon the 17th day of May, 1902, at 11 o'clock a. m., or so soon thereafter as the same could be heard, make application to the Wabash Circuit Court, at the court-house of the city of Wabash, for the appointment of three disinterested freeholders of said county to appraise the damages which the owner of the land, the defendant herein, would sustain by such appropriation, and to ascertain and determine the manner of such crossing, and duly filed in the Wabash Circuit Court its petition asking for the appointment of appraisers to assess such damages, and ascertain and determine the manner of such crossing, and such proceedings were had therein as that on the 19th day of May, 1902, the Wabash Circuit Court duly appointed three disinterested freeholders, commissioners and appraisers, residents of said county of Wabash, to appraise the damages which the defendant would sustain by reason of such appropriation, and to ascertain and determine the manner of such crossing, and said appraisers were duly notified of their said appointment, and duly qualified and sworn to perform their duty as required by law, and afterwards, on the 20th day of May, 1902, said commissioners and appraisers, upon actual view of the premises, ascertained and determined the manner of such crossing, and assessed the damages which would be sustained by the defendant by reason of such crossing and appropriation of the right to cross the right of way and tracks of said defendant; that said commissioners and appraisers ascertained and designated the manner of such crossing in their report as follows: The manner of crossing the right of way and tracks of the Wabash Railroad Company by the Ft. Wayne and Southwestern Traction Company shall be a grade crossing, the Ft. Wayne and Southwestern Traction Company constructing its line of track on a level and at grade with the tracks of the Wabash Railroad Company; that the same shall be a frog crossing, constructed of the same weight and kind of rail as are the rails in the tracks of the Wabash Railroad Company now at said point, and to be of a pattern in general use. It was further alleged that, on account of such crossing and appropriation, said commissioners appraised appellant's damages at $ 300, which the appellant on the day of May, 1902, paid to the clerk of the Wabash Circuit Court in favor of appellee; that appellee expended large sums of money in completing its approaches and grades to the tracks on either side of appellant, and on a level therewith; that it has, at large expense, procured crossing frogs, rails, crossing material, and derailing devices, of the weight and dimensions designated by said agents, preparatory to constructing the crossing in the manner designated by said commissioners, and in full compliance therewith; that appellee has done nothing in the way of constructing its street railroad and the laying of its tracks, and has not threatened to do anything in the way of putting in a crossing, except in strict conformity and compliance with the decision and report of said commissioners; that appellant on the 29th day of May, 1902, for the purpose of obstructing, preventing, and prohibiting appellee from completing its railroad and tracks across the right of way and tracks of appellant, sent a large force of men, machinery, and material to said point, and built and constructed switches on each side of the track at said point, extending across the point in each direction where appellee's street railroad crosses the railroad of appellant.
Other facts are averred showing that appellant used means effectually to prevent appellee from putting in its crossing. Prayer for temporary injunction. Appellee's complaint was verified by affidavit.
The appellant's verified answer, which was introduced in evidence, stated that the appellant, not waiving any objections that may exist against appellee's application and complaint for a temporary injunction, answered only as to said application, and averred that said temporary injunction ought not to be granted because appellee has not, by purchase or agreement, or by the adjudication of any court, obtained the right to cross its railroad over the railroad and right of way of appellant at the place mentioned in appellee's complaint, or at any other place in Wabash county, Indiana; that appellant admits that on the 7th day of May, 1902, the appellee filed in the office of the clerk of the Wabash Circuit Court an instrument in writing claiming and purporting to be an instrument of appropriation for the alleged purpose of appropriating and claiming, by condemnation proceedings, the right to cross its railroad over appellant's right of way and railroad at the place mentioned in appellee's complaint. Appellant admitted in...
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Wabash R. Co. v. Ft. Wayne & S.W. Traction Co.
... ... June 5, 1903 ... Appeal from Circuit Court, Wabash County; H. B. Shively, Judge. Bill by the Ft. Wayne & Southwestern Traction Company against the Wabash Railroad Company to enjoin defendant from interfering with the construction of a crossing of its railroad. From ... ...