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the houses will be vacant, in a general , loss, and the cause cannot be reversed for sense, a large part of the year, and the con- insufficiency of evidence on this point. We tract is made with that implied understand- find no error. ing; and it is just as well known, when ne Judgment affirmed. gotiating or writing a three-year term of insurance on a house to be occupied by ten MONTGOMERY, J., did not participate in ants, that during the term the probabilities the decision of this court. are that there will be some change of tenants. When such changes occur, as they are liable to in spite of the efforts of the

(166 Ind. 219) landlord, the necessary and reasonable time

VANDALIA R. CO. v. STATE ex rel. CITY intervening between the outgoing and in

OF SOUTH BEND. (No. 20,663.) coming tenant must be held to have been

(Supreme Court of Indiana. Feb. 23, 1906.) contemplated by the parties, and not intended to effect the validity of the policy, 1 1. MANDAMUS-NATURE OF OB

1. MANDAMU8–NATURE OF OBLIGATION Exin the absence of something more specific

FORCED.

Under Burns' Ann. St. 1901, $ 5153, cl. than the general and usual condition against 5, requiring railroads crossing highways to revacancy and unoccupancy. Upon this point store them to their former state, or in a suffithe Supreme Court of Iowa, in Worley v.

cient manner not to unnecessarily impair their

usefulness, and section 5172a, requiring railIns. Co., 91 Iowa, 150, 59 N. W. 16, 51 Am.

roads crossing streets, avenues, or alleys in St. Rep. 334, said: “It must surely have cities to properly grade and plank or gravel been contemplated by the parties that there their roads at the crossings, the obligation of a

railway company under a franchise ordinance would be changes of tenants during the life

granting it the right to cross the streets of a of the policy, and that soine time would in city on condition that it make safe crossings tervene between the going out of one and was one imposed by law, so that it might be the coming in of another. The condition

enforced by mandamus.

[Ed. Note.For cases in point, see vol. 33, against the premises becoming vacant must

Cent. Dig. Mandamus, & 267.] have been made in view of this probability, and it was not intended that the lapse of a

2. SAMEMADEQUACY OF OTHER REMEDY.

Though a city might construct suitable reasonable time in changing tenants should

crossings over a railroad and bring an action render the policy void.” See, also, to same for the cost and for a penalty, under the eseffect, Hotchkiss v. Phænis Ins. Co., 76 Wis.

press terms of the franchise ordinance granting

it the right to use the streets and under Burns 209, 44 N. W. 1106, 20 Am. St. Rep. 69;

Ann. St. 1901, § 5172a, providing that it shall Lockwood v. Middlesex, etc., Co., 47 Conn. be the duty of each railroad company whose 553; Roe v. Dwelling House Ins. Co., 149 Pa, tracks cross streets in a city to properly grade 9+, 23 Atl. 718, 34 Am. St. Rep. 595; Ger

and plank or gravel its tracks at the crossings,

that remedy is not adequate, so as to prevent man Ins. Co. v. Davis, 40 Neb. 700, 59 N.

the enforcement of the company's obligation by W. 698; Traders' Ins. Co. v. Race, 142 Ill. mandamus. 338, 31 N. E. 392; Dwelling House Ins. Co. 3. SAME-JUDGMENT. V. Walsh, 10 Ky. Law Rep. 282; Union Ins.

In mandamus proceedings to compel the

construction of a crossing by a railway comCo. v. McCullough (Neb.) 96 N. W. 79; Shack

pany, a judgment requiring the company to elton v. Sun Fire Office, 65 Mich. 288, 21

plank the crossing was not erroneous as being N. W. 343, 54 Am. Rep. 379; Cummins v. too specific, but properly directed particularly Ins. Co., 67 N. Y, 260, 23 Am. Rep. 111.

what should be done in the construction of the

crossing. There was no error in overruling the de

4. SAME-RETURN-DENIAL-CONFESSION AND murrer to the second paragraph of the re AVOIDANCE. ply.

In mandamus proceedings to compel a railAppellant also complains of the overrul

road company to construct a highway crossing,

a return stating facts tending to show the ining of its motion for a new trial.

validity of the proceedings for the establishment It is urged that the court erred in giving of the highway and setting up a contract beto the jury instruction No. 8, requested by

tween the city and company for the erection of a

viaduct in lieu of grading the crossing will be the appellee. This instruction was framed

construed as a plea in confession and avoidupon the theory of the second paragraph ance alone, since a single paragraph cannot of reply, and embodied substantially the both deny the cause of action and confess and same language, and what we have said re

avoid it.

5. MUNICIPAL CORPORATIONS-CONTRACTS. lative to the demurrer to the reply will sus

Acts 1901, p. 235, c. 118 (Burns' Ann. St. tain this instruction as a correct expression 1901, $ 4190n8), authorizing the board of pubof the law. But appellant further argues lic works of a city to contract for the erection that it was erroneously given because there

of any viaduct within the city, or to contract

with any company for the joint erection and was no evidence in the case to which it was maintenance by the company and city of any applicable. In this it is mistaken. The viaduct, provided the contract shall be subtestimony of appellant's agent Day justified

mitted to the council of the city and approved

by them by ordinance before it shall take effect, the instruction, and upon the controlling

does not authorize a city to enter into a confacts there was really no conflict in the evi tract with a railway company for the erection dence.

of a viaduct over the railroad track by the

company and the erection of approaches there There was also evidence tending to prove

to by the city, the viaduct to be maintained a denial of liability within 60 days from the solely by the city for all time.

M

Appeal from Circuit Court, St. Joseph, still refuses so to do. That on the 18th day County; Walter A. Funk, Judge.

of December, 1903, said city notified said Mandamus by the state, on the relation of railway company to open up said intersection, the city of South Bend, against the Terre and to plank the same, but said company reHaute & Logansport Railway Company. fused and neglected so to do. It was proThe Vandalia Railroad Company was substi. vided by section 4 of the franchise ordinance tuted as defendant. From a judgment in that if, after notice, the railroad company favor of relator, defendant appeals. Affirmed. failed to do the things required of it by the John G. Williams, Samuel Parker, and An

ordinance, the same might be done by the derson, Du Shane & Crabill, for appellant.

street commissioner of the city, and the cost F. H. Dunnaboo and H. R. Wair, for appellee.

thereof, with 20 per cent. penalty, recovered

of the company in any court of competent MONTGOMERY, J. Appellee brought this jurisdiction. Appellant argues that the pasaction against the Terre Haute & Logansport sage of the franchise ordinance by the city Railway Company for a writ of mandamus and its acceptance by the railway company to compel said company to open, plank, and constituted a contract, that this action is make safe and convenient for travel the founded upon such contract, and that duties. crossing of Calvert street over its right of of a corporation arising wholly out of conway, tracks, and yard in the city of South tract relations will not be enforced by writs Bend. An alternative writ was issued, where of mandamus. upon the defendant appeared, waived service, It is well settled that the use of writs of and filed its demurrer for want of facts to the mandamus is limited to the enforcement of application, the alternative writ, and the pe- obligations imposed by law; and duties of a tition and writ. This demurrer was over- corporation arising wholly out of contract ruled, and a return filed, to wbich appellee obligations, and not imposed by express law successfully demurred, and, defendant de or by the conditions of its charter, will not clining to plead further, judgment was ren-be enforced by such writs. State ex rel. v. dered in favor of appellee as prayed. Ap- Trustees, etc., et al., 114 Ind. 389, 16 N. E pellant alleges that by consolidation it has 808; Indiana, etc., Ry. Co. v. Rinehart, 14 Ind. succeeded to the rights of the Terre Haute & App. 588, 43 N. E. 238; 19 Am. & Eng. Ency. Logansport Railway Company, and by proper Law, 742. The general railroad act of this assignments of error presents for review the state grants to a railroad company power action of the court in overruling the demurrer “to construct its road upon or across any to the alternative writ, and in sustaining ap- . *, * highway

so as not to inpellee's dem urrer to the return.

terfere with the free use of the same, which The alternative writ set forth the follow the route of its road shall intersect, in such ing, among other facts: That the city of manner so as to afford security for life and South Bend is a municipal corporation of property; but the corporation shall restore this state. The Terre Haute & Logansport 1 the * . highway * . . thus interRailway Company is a railroad corporation sected to its former state, or in a sufficient operating a line of railway from Bronson manner not to unnecessarily impair its use. street in said city to the south corporation fulness.” Section 5153, cl. 5, Burns' Ann. St. line. That on the 10th day of November, 1901. It has been frequently held that under 1884, said city by ordinance, a copy of which this statute a railroad company is required is filed with the complaint, granted to said to make safe and convenient crossings at railway company a franchise to operate its the intersections of all highways, whether said road across the streets and alleys of the same were established and opened before the city. That said railway company accept- or after the construction of the railroad. ed said franchise, and ever since has acted Louisville, etc., Ry. Co. v, Smith, 91 Ind. 119; under the same. That the express condition | Lake Erie, etc., R. Co. v. Cluggish et al., 143 of said franchise was that, wherever a street | Ind. 347, 351, 42 N. E. 743; Evansville, etc., or alley of said city was crossed by said rail- | R. Co. v. State ex rel., 149 Ind. 276, 278, road, it should be made to conform with the 49 N. E. 2; Egbert v. Lake Shore, etc., Ry. grade of such street or alley as then fixed Co., 6 Ind. App. 350, 353, 33 N. E. 659; Baltior thereafter established, and so maintained more, etc., R. Co. v. State ex rel., 159 Ind. by said company as to cause the least ob 510, 519, 65 N. E. 508; Lake Erie, etc., R. Co. struction possible to the passage of persons v, Shelley, 163 Ind. 36, 41, 71 N. E. 151; Eland vehicles. That said railroad intersects liott on Railroads, § 1102. Section 5172a, Calvert street, formerly known as Elmira Burns' Ann. St, 1901 (Acts 1895, p. 233, c. street, a public highway of said city and in 114), is as follows: "That it shall be the duty use as such by the public, at a point particu of each railroad company whose road or larly described. That said street is 60 feet tracks cross, or shall hereafter cross, any wide, and the grade thereof has been es- street, avenue or alley, in any incorporated tablished for more than four years, but said town or city in the state of Indiana, which company, has not opened its real property, said street, avenue or alley has been, or riglit of way, or tracks at the point of inter- shall hereafter be, by addition, plat or othersection or made the same conform to the wise, dedicated to the public use, to properly grade of said street, but has refused and grade and plank or gravel its said road and

tracks at its intersection with and crossing, remains whether such a remedy must be of said street, avenue or alley in acordance held adequate and exclusive. This question with the grade of said street or avenue, in has been answered in the negative in the case such manner as to afford security for life of Indianapolis, etc., R. Co. v. State ex rel., and property at said intersection and cross 37 Ind. 489, 494; the court saying: "Can it ing." It is thus seen that the duty which be said, then, that this would be an adequate appellee seeks to have performed by this pro- remedy? It would seem to us not. Or shall ceeding, is one specifically enjoined by law | it be said that it was the duty of the city to and imposed by appellant's charter. The fill up and grade the streets and alleys so as performance of a similar duty has been en to make them convenient for passage, etc., forced in numerous instances by proceedings | at her own expense in the first instance, and of this character. Indianapolis, etc., R. Co. then to be compelled to bring an action v. State ex rel., 37 Ind. 489; Evansville, etc., against the railroad company for reimburseR. Co. v. State ex rel., 149 Ind. 276, 49 V. E. ment? If one have a right of action for a 2; Chicago, etc., R. Co. v. State ex rel., 158 grievance against another, either for damInd. 189, 63 N. E. 224; Chicago, etc., R. Co. ages or for the specific performance of an act, v. State ex rel., 159 Ind. 237, 64 N. E. 860; | it is certainly not an adequate remedy to bim Baltimore, etc., R. Co. v. State ex rel., 159 to be compelled in the first instance to lay Ind. 510, 65 N. E. 508. The provisions of out $100 for the use of another, and then to the franchise ordinance requiring the rail have the right simply to recover back his way company to make and maintain safe money so laid out by him, and perhaps get crossings were simply declaratory of the law legal interest on his money.” The fact that, as it existed independently of the city's en- in addition to the cost, a specific penalty may actment, and it cannot be fairly said the be recovered in lieu of legal interest, does omitted duty complained of was one growing | not affect the principle. It would further wholly out of contract obligations. In grant

seem to be more expedient and conducive ing a franchise to use its streets, alleys, or to safety that such work as elevating or public places, the city exercises its delegated lowering railway tracks and constructing legislative powers, and for that purpose could crossings should be done by skilled workmen not by contract barter away its future legis. acting under orders from the company conlative control over such highways and places. cerned, rather than by the inexperienced emIt is the plain and continuing duty of a city ployés of the municipality. Our conclusion to prevent the unnecessary obstruction of its

is that mandamus was an available remedy streets, and to see that the same are kept in to enforce performance of this duty, notwithgood order and safe for use by the public. standing the provisions for a different proThe railway company, a quasi public corpora cedure. State v. New York, etc., R. Co., 71 tion, is created to facilitate and not to im

Conn. 43, 40 Atl. 925 ; State ex rel. v. Vinnepede travel, and from its nature as well as sota T. Ry. Co., 80 Minn. 108, 83 N. W. 32, charter obligations, the duty arises of keep 50 L. R. A. 656. ing its intersections with highways in good It is further insisted that the choice of repair and condition for safe and convenient materials to be used in making the crossing use by the public. In the case of Indianapo should have been left to the company, and lis, etc., R. Co. v. City of Lawrenceburg, 37 that the provisions of the mandate requirInd. 489, 495, this court disposed of a con ing the company “to plank the crossing** tention like that now made, in the following were not justified by the terms of the ordilanguage: “But this ordinance is not a con nance or by the facts stated in the writ. tract between the railroad company and the The ordinance does not purport to specify the city, but simply a grant of the right of way materials required to make the crossing most upon certain conditions and duties subsequent convenient for use. The statute requires the to be performed by the company. And the railroad "to properly grade and plank or proper means by which a corporation may be gravel its said road and tracks at its intercompelled to perform a plain duty-and the sections." Conceding that, in the first induty is plain in this case—is by a writ of stance, the company had an option as to mandate.” Chicago, etc., Ry. Co. v. State materials to be used, providing the crossing ex rel., 158 Ind. 189, 192, 63 N. E. 224. See, was put in such condition "as to afford sealso, Seymour Water Company V. City of curity to life and property," it does not folSeymour, 163 Ind. 120, 130, 70 N. E. 514, and low that, after failure and refusal to concases cited.

struct any crossing, it may justly complain It is next urged that the relator could have of a choice of materials made by the court. constructed the crossing and brought an ac Appellee's petition asked for a plank crosstion for the cost of the same and the penalty ing, the statute authorized the court to pre as provided in the ordinance, and thereby scribe that materiaı, and upon the facts and have secured complete and adequate redress circumstances shown the court was warrantwithout resort to this extraordinary remedy. ed in requiring the crossing to be planked. It is undeniable that either under the pro The writ was not subject to the criticism of visions of the ordinance or of section 5172a, being too specific, but properly directed par. Burns' Ann. St. 1901, the city might have ticularly what should be done in the conpursued the course suggested; but the query | struction of the crossing. Elliott ou Railroads, 8 1106; Chicago, etc., R. Co. v. State , full as part of the return. The agreement ex rel., 158 Ind. 189, 194, 63 N. E. 224, and provided that in lieu of a grade crossing the cases cited. The demurrer to the alternative railway company should construct a steel writ was rightly overruled.

viaduct above and across its tracks at ElThe return of the defendant below con mira street, with a paved roadway 30 feet tained in substance the following averments : wide and sidewalks on each side 8 feet wide, That the Terre Haute & Logansport Railway the bottom of the same to be 22 feet above Company is a corporation owning and op the top of the rail, such work to be done erating a line of railroad from Terre Haute when the city shall have money in hand sufto Bronson street in the city of South Bend. ficient to build the approaches to said via. That on December 1, 1891, the Terre Haute & duct, and through its board of public works Logansport Railroad Company, to whom the and common council shall have ordered the original franchise was granted, ceased to approaches built, appropriated the necessary own said railroad. That on October 28, | funds, and notified the railway company 1903, defendant was served with notice from thereof, in writing; and, when completed, the board of public works of the city of the city should "maintain and keep in repair South Bend to open Calvert street, formerly said approaches and said viaduct for all called Elmira street, across its tracks, and time." It is further alleged that the conto plank the crossing in the usual manner, 1 struction of said viaduct would cost $30,000, and that it failed and refused to do said and that the railway company is now and at work because of the following facts: that all times has been able, ready, and willing at the time of the passage of said franchise to perform all its agreements in said conordinance the place where Calvert or Elmira tract contained, but that the relator has perstreet crosses said railroad tracks was out formed none of its agreements and given side the corporate limits of said city, and in said company no notice to construct said 1887 was taken into the corporate limits of viaduct, and that the public had acquired no the town of Myler, and in 1892 said town right to use the alleged street across its yard was annexed and became a part of said city. and tracks, except in the manner set out and That on August 12, 1891, Frank S. Stover by the special proceedings of the board of and 13 others filed with the board of trustees | trustees of the town of Myler, which it is of said town a petition for the establishment charged were wholly insufficient. Whereof a street to be known as Elmira street over fore defendant says it ought not be comthe ground where the relator now claims pelled to open the alleged street across its said street is located. The special proceed tracks and yard at grade. ings had in connection with the establish Appellant's counsel assert and argue an ment of said street are set out in detail, tend insufficiency of the notice and return of sery. ing to show that the Terre Haute & Logans- ice in the special proceedings of the board port Railroad Company was not legally noti of trustees of the town of Myler for the esfied of such proceedings. It is shown that tablishment of Elmira street, a want of noprior thereto said company had executed an tice to the mortgagee of the property to be outstanding deed of trust on its property, appropriated, and, in consequence, a taking and that the trustee therein named was not of property without due process of law, in notified of said proceedings; and subsequent violation of the fourteenth amendment to the ly said deed of trust was foreclosed, and Constitution of the United States. Appelupon sale said property was duly transferred lee's counsel insist that the only question preto the defendant, Terre Haute & Logansport sented to and considered by the circuit court Railway Company. It is further charged: 1 upon the demurrer to the return was the That in tue year 1901 the relator was claim validity of the agreement therein pleaded. ing that by virtue of the proceedings of the Appeals are provided primarily to enable board of trustees of the town of Myler said parties to secure a review of the decisions Calvert or Elmira street was located and made by trial courts, and, generally speakestablished across the right of way, land, i ing, upon appeal parties will be held to the tracks and yard of the Terre Haute & Log- position and theory assumed and maintained ansport Railroad Company which, because of by them in the court below. In the prepara. the special facts pleaded, said company in tion of issues for trial it is necessary to regood faith denied. That on January 17, quire parties to adopt and make their plead1902, for the purpose of adjusting and set- | ings conform to some definite theory. When tling said conflicting claims, the relator, act. a pleading has been framed upon a manifesting by its board of public works, entered into ly definite theory, it must be good upon that a contract whereby said railway company | theory or it will not be good at all. A pleadagreed to construct a steel viaduct over its ing must be judged from its general tenor tracks at said alleged street, and the relator and scope, and when it assumes to proceed agreed to construct the approaches thereto, upon a distinct theory it cannot be made and each to perform other agreements there good on some other by casting into it isolated in set out, which contract was in writing and statements which, if fully pleaded in sepawas by ordinance duly ratified by the com rate paragraphs, might constitute a cause of mon council of said city. The viaduct agree. | action or defense. Western Union Teleg. Co. ment and ratifying ordinance are set out in v. Young, 93 Ind. 118; Western Union, etc., Co. v. Reed, 96 Ind. 195, 198; Balue v. Tay. I wise affected by the circumstance that the lor et al., 136 Ind. 368, 36 N. E. 269; 21 agreement was the result of a compromise Ency. Plead. & Prac. 652. The manifest the and settlement of an existing controversy. ory of the pleader was to show that a reason. It is made to appear that the work contemable and bona fide controversy existed as to plated has not been performed, and so far the validity of the proceedings for the es as disclosed no rights have attached by vir. tablishment of Elmira street by the board of tue of the agreement. The viaduct as plantrustees of the town of Myler, as an induce. ned was to be 46 feet wide, being 14 feet less ment to and consideration for entering into than the width of the street, and was to be the compromise agreement pleaded, and that maintained solely by the city "for all time." said contract having been legally executed Municipal corporations of this state are given and not rescinded, the railway company was exclusive control over their streets and althereby absolved from the duty declared up leys. This authority is conferred for the on, to construct and maintain a grade cross benefit of the public, and from it arises a ing at the point in controversy. “A single continuing duty on the part of the city to paragraph of answer cannot perform the exercise legislative control over its streets double function of denying the cause of ac and alleys at all times and places when detion, and confessing and avoiding it. It manded by the public good. A municipal must be one thing or the other, but it cannot corporation has no power by contract, ordibe both; and its character, in this respect, nance, or by-law to cede away, limit, or conmust be determined from the general scope trol its legislative or governmental powers, of its averments." Kimble v. Christie, 55 or to disable itself from performing its pubInd. 140, 144. In our opinion the return un lic duties. 1. Dillon, Municipal Cor. & 97; El. der consideration was intended to confess and liott on Roads and Streets, $ 657; Schipper avoid the duty sought to be enforced, and its v. City of Aurora, 121 Ind. 154, 159, 22 N. E. suficiency must be determined upon that the 878, 6 L. R. A. 318; City of Peru v. Gleason, ory. This conclusion forbids à discussion of 91 Ind. 568; City of Indianapolis v. Indianthe legality of the various steps taken in the apolis Gas Co., 66 Ind. 396. proceedings to establish Elmira street, as If the contract relied upon by appellant is well as the constitutional question raised. valid, its obligations are secure against im

The only question remaining for decision pairment, not only by the city of South Bend, is the validity of the contract made between but also by the Legislature itself; and the the railway company and the city, for the viaduct, once constructed, must be maintained construction and maintenance of a viaduct. by the city to the end of time, and the comThe charter of the city of South Bend author pany and its successors be forever relieved ized its board of public works to "design, of all duties now owing or hereafter to be order, contract for and execute the erection imposed on account of the grade crossing. of any culvert, bridge, way, viaduct, tunnel It is not at all improbable that the future or aqueduct within such city, or to enter into policy of the state and the safety and cona contract with any company or individual venience of the people may require the elevafor the joint erection and maintenance by tion or lowering of railroad tracks through such company or individual and such city cities and populous districts and the preservaof any such structure, * * * provided tion of ordinary highways upon natural that such contract shall in all cases be sub grades free from obstructions. It is imposmitted by said board to the council of such sible to anticipate the changes which in the city and approved by them by ordinance be future may be found expedient, and the police fore the same shall take effect." Acts 1901, regulations which may become necessary, to p. 235, c. 118; section 4190n8, Burns' Ann. St. be made, at this particular crossing. The via1901. It is appropriate to note that the ne duct contract in question provides for single cessity, if any, for the viaduct provided for maintenance by the city, instead of joint by the agreement pleaded was created by the maintenance by both the parties, and it purexistence and operation of the railroad. If ports to bind the city and to limit and deny the street was lawfully established across its legislative and police control over this the tracks and ground of the railway com part of the street, for all time. That these pany, a fact not denied by the return as we provisions of the agreement are unauthorized construe it, then the duty of making and and invalid is not only approved by reason maintaining a safe and convenient grade and sound policy, but well supported by aucrossing devolved upon the company; and in thority. In the case of State ex rel. v. Minsuch case the board of works would not be nesota T. Ry. Co., 80 Minn, 108, 116, 83 N. W. justified in either erecting or maintaining a 32, 35, 50 L. R. A, 656, the Supreme Court of viaduct solely at the city's expense. The au Minnesota, in holding a very similar conthority, if any existed, for entering into the tract void, said: “It cannot be that the contract, must be found in that part of the common council of 1888, by the passage of statute which empowered the board, with the a resolution providing for the construction of approval of the council, to make a contract a bridge 60 feet in width in a street 120 feet with any company for the joint erection and wide, to be perpetually maintained by the maintenance of such a structure. The pow | city, could limit or control the legislative acer of the city to make this contract is in no tion of its successors, or could abdicate its

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