Wabash Ry. Co. v. Todd

• Decision Date: 25 October 1916
• Docket Number: No. 23086.,23086.
• Citation: 186 Ind. 72,113 N.E. 997
• Parties: WABASH RY. CO. v. TODD.
• Court: Indiana Supreme Court

186 Ind. 72

113 N.E. 997

WABASH RY. CO.

v.TODD.

No. 23086.

Supreme Court of Indiana.

Oct. 25, 1916.

Appeal from Circuit Court, Wabash County; N. T. Hunter, Judge.

Proceedings by William A. Jackson and others for the establishment of a drainage ditch. Petition by Walter G. Todd, superintendent, etc., against the Wabash Railway Company, to require the building of a bridge. From a judgment for petitioner, defendant appeals. Affirmed.

Stuart, Hammond & Stuart, of Lafayette, and J. D. Conner, Jr., of Wabash, for appellant. Plummer, Todd & Plummer, of Wabash, for appellee.

SPENCER, J.

The matters involved in this appeal have their origin in a proceeding instituted in the circuit court of Wabash county on September 13, 1909, by William A. Jackson and others to procure the establishment of a certain public drain in that county in accordance with the provisions of the drainage act of 1907. Acts 1907, p. 508; section 6140 et seq., Burns 1914. In the report of the drainage commissioners, made in said proceedings, it was recommended that:

“At a point where this proposed drainage crosses the right of way of the Wabash Railroad Company, there be constructed a bridge under the roadbed thereof, which said bridge shall be 24 feet long and 12 feet high, with an opening for the passage of the water of the above dimensions. And that said bridge shall be constructed solely at the cost of the Wabash Railroad Company.”

The railroad company filed a remonstrance to the report of the commissioners, on the grounds, among others:

“That a bridge of the size and dimensions mentioned in said report at the place in question is wholly unnecessary,” and “that said report is illegal in its recommendation, requiring said Wabash Railroad Company to construct the bridge therein mentioned at its own cost, because it is not competent, under the laws of the state of Indiana, to make such requirement of a railroad company.”

On a trial of the above remonstrance the court found specially that a bridge 17 feet long and 8 feet high would be sufficient to accommodate the flow of water in the proposed drain, and concluded as a matter of law that the railroad company should be required to construct such a bridge across its right of way and on the line and grade of the proposed drain at its own expense. From a judgment rendered on the trial court's conclusions of law, and which established the drain in accordance with the report of the drainage commissioners as thus modified, the railroad company appealed to this court, and the judgment was here affirmed. Wabash R. Co. v. Jackson, 176 Ind. 487, 95 N. E. 311, 96 N. E. 466. Subsequently, on January 10, 1916, appellee, as superintendent for the construction of the established improvement, filed a petition in the Wabash circuit court, in which he set out, in substance, the facts above stated, and alleged, further:

“That said drain was sold by a former superintendent of the same and constructed so far as possible by the purchaser, but that said railroad company has never yet constructed said bridge, as ordered by this court, and has always refused so to do, although said cause was decided by the Supreme Court on November 22, 1911, and the completion of said drain is and has been delayed by reason of the failure of said company, and its successor, to act.”

The petition further alleges in detail the refusal of the Wabash Railroad Company, and its successor, the present appellant, to build the bridge in question, and asks for-

“an order of this court, fixing a definite time in which said Wabash Railway Company shall construct said bridge, or culvert, in accordance with the order heretofore had and entered in this cause.”

Appellant's motion to dismiss the above petition and its demurrer thereto were each overruled, and said rulings are now challenged by the assignment of errors in this court. To treat these assignments collectively, it is the contention of appellant, in substance: (1) That this is an action in mandamus, and is not authorized under the drainage laws of the state; (2) that, even though a proper proceeding in such cases, an action in mandamus can be brought only in the name of the state, on the relation of the party in interest; (3) that appellee, as superintendent for the construction of the drainage improvement, has no authority under the law to maintain this action, either individually or as a relator; (4) that the trial court had no jurisdiction of the subject-matter of the alleged action; and (5) that appellant is under no legal obligation to construct the bridge in question, and...