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loss, and the cause cannot be reversed for insufficiency of evidence on this point. We find no error.

Judgment affirmed.

MONTGOMERY, J., did not participate in the decision of this court.

(166 Ind. 219)

VANDALIA R. CO. v. STATE ex rel. CITY
OF SOUTH BEND. (No. 20,663.)
(Supreme Court of Indiana. Feb. 23, 1906.)
1. MANDAMUS-NATURE OF OBLIGATION EN-

FORCED.

Under Burns' Ann. St. 1901, § 5153, cl. 5, requiring railroads crossing highways to restore them to their former state, or in a sufficient manner not to unnecessarily impair their usefulness, and section 5172a, requiring railroads crossing streets, avenues, or alleys in cities to properly grade and plank or gravel their roads at the crossings, the obligation of a railway company under a franchise ordinance granting it the right to cross the streets of a city on condition that it make safe crossings was one imposed by law, so that it might be enforced by mandamus.

the houses will be vacant, in a general
sense, a large part of the year, and the con-
tract is made with that implied understand-
ing; and it is just as well known, when ne-
gotiating or writing a three-year term of
insurance on a house to be occupied by ten-
ants, that during the term the probabilities
are that there will be some change of ten-
ants. When such changes occur, as they
are liable to in spite of the efforts of the
landlord, the necessary and reasonable time
intervening between the outgoing and in-
coming tenant must be held to have been
contemplated by the parties, and not in-
tended to effect the validity of the policy,
in the absence of something more specific
than the general and usual condition against
vacancy and unoccupancy. Upon this point
the Supreme Court of Iowa, in Worley v.
Ins. Co., 91 Iowa, 150, 59 N. W. 16, 51 Am.
St. Rep. 334, said: "It must surely have
been contemplated by the parties that there
would be changes of tenants during the life
of the policy, and that some time would in-
tervene between the going out of one and
the coming in of another. The condition
against the premises becoming vacant must
have been made in of 2
and it was not intended that the lapse of a
reasonable time in changing tenants should
render the policy void." See, also, to same
effect, Hotchkiss v. Phoenix Ins. Co., 76 Wis.
269, 44 N. W. 1106, 20 Am. St. Rep. 69;
Lockwood v. Middlesex, etc., Co., 47 Conn.
553; Roe v. Dwelling House Ins. Co., 149 Pa.
94, 23 Atl. 718, 34 Am. St. Rep. 595; Ger-
man Ins. Co. v. Davis, 40 Neb. 700, 59 N.
W. 698; Traders' Ins. Co. v. Race, 142 Ill.
338, 31 N. E. 392; Dwelling House Ins. Co.
v. Walsh, 10 Ky. Law Rep. 282; Union Ins.
Co. v. McCullough (Neb.) 96 N. W. 79; Shack-
elton v. Sun Fire Office, 65 Mich. 288, 21
N. W. 343, 54 Am. Rep. 379; Cummins v.
Ins. Co., 67 N. Y. 260, 23 Am. Rep. 111.

There was no error in overruling the demurrer to the second paragraph of the reply.

Appellant also complains of the overruling of its motion for a new trial.

It is urged that the court erred in giving to the jury instruction No. 8, requested by the appellee. This instruction was framed upon the theory of the second paragraph of reply, and embodied substantially the same language, and what we have said relative to the demurrer to the reply will sustain this instruction as a correct expression of the law. But appellant further argues that it was erroneously given because there was no evidence in the case to which it was applicable. In this it is mistaken. The testimony of appellant's agent Day justified the instruction, and upon the controlling facts there was really no conflict in the evidence.

There was also evidence tending to prove a denial of liability within 60 days from the

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus, § 267.]

2. SAME ADEQUACY OF OTHER REMEDY.

Though a city might construct suitable crossings over a railroad and bring an action for the cost and for a penalty, under the express terms of the franchise ordinance granting it the right to use the streets and under Burns' Ann. St. 1901, § 5172a, providing that it shall be the duty of each railroad company whose tracks cross streets in a city to properly grade and plank or gravel its tracks at the crossings, that remedy is not adequate, so as to prevent the enforcement of the company's obligation by mandamus.

3. SAME JUDGMENT.

In mandamus proceedings to compel the construction of a crossing by a railway company, a judgment requiring the company to plank the crossing was not erroneous as being too specific, but properly directed particularly what should be done in the construction of the crossing.

4. SAME RETURN-DENIAL-CONFESSION AND AVOIDANCE.

In mandamus proceedings to compel a railroad company to construct a highway crossing, a return stating facts tending to show the invalidity of the proceedings for the establishment of the highway and setting up a contract between the city and company for the erection of a viaduct in lieu of grading the crossing will be construed as a plea in confession and avoidance alone, since a single paragraph cannot both deny the cause of action and confess and avoid it.

5. MUNICIPAL CORPORATIONS-CONTRACTS.

Acts 1901, p. 235, c. 118 (Burns' Ann. St. 1901, § 4190n8), authorizing the board of public works of a city to contract for the erection of any viaduct within the city, or to contract with any company for the joint erection and maintenance by the company and city of any viaduct, provided the contract shall be submitted to the council of the city and approved by them by ordinance before it shall take effect, does not authorize a city to enter into a contract with a railway company for the erection of a viaduct over the railroad track by the company and the erection of approaches there to by the city, the viaduct to be maintained solely by the city for all time.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Mandamus by the state, on the relation of the city of South Bend, against the Terre Haute & Logansport Railway Company, The Vandalia Railroad Company was substituted as defendant. From a judgment in favor of relator, defendant appeals. Affirmed.

John G. Williams, Samuel Parker, and Anderson, Du Shane & Crabill, for appellant. F. H. Dunnaboo and H. R. Wair, for appellee.

MONTGOMERY, J. Appellee brought this action against the Terre Haute & Logansport Railway Company for a writ of mandamus to compel said company to open, plank, and make safe and convenient for travel the crossing of Calvert street over its right of way, tracks, and yard in the city of South Bend. An alternative writ was issued, whereupon the defendant appeared, waived service, and filed its demurrer for want of facts to the application, the alternative writ, and the petition and writ. This demurrer was overruled, and a return filed, to which appellee successfully demurred, and, defendant declining to plead further, judgment was rendered in favor of appellee as prayed. Appellant alleges that by consolidation it has succeeded to the rights of the Terre Haute & Logansport Railway Company, and by proper assignments of error presents for review the action of the court in overruling the demurrer to the alternative writ, and in sustaining appellee's demurrer to the return.

The alternative writ set forth the following, among other facts: That the city of South Bend is a municipal corporation of this state. The Terre Haute & Logansport Railway Company is a railroad corporation operating a line of railway from Bronson street in said city to the south corporation line. That on the 10th day of November, 1884, said city by ordinance, a copy of which is filed with the complaint, granted to said railway company a franchise to operate its said road across the streets and alleys of the city. That said railway company accepted said franchise, and ever since has acted under the same. That the express condition of said franchise was that, wherever a street or alley of said city was crossed by said railroad, it should be made to conform with the grade of such street or alley as then fixed or thereafter established, and so maintained by said company as to cause the least obstruction possible to the passage of persons and vehicles. That said railroad intersects Calvert street, formerly known as Elmira street, a public highway of said city and in use as such by the public, at a point particularly described. That said street is 60 feet wide, and the grade thereof has been established for more than four years, but said company has not opened its real property, right of way, or tracks at the point of intersection or made the same conform to the grade of said street, but has refused and

still refuses so to do. That on the 18th day of December, 1903, said city notified said railway company to open up said intersection, and to plank the same, but said company refused and neglected so to do. It was provided by section 4 of the franchise ordinance that if, after notice, the railroad company failed to do the things required of it by the ordinance, the same might be done by the street commissioner of the city, and the cost thereof, with 20 per cent. penalty, recovered of the company in any court of competent jurisdiction. Appellant argues that the passage of the franchise ordinance by the city and its acceptance by the railway company constituted a contract, that this action is founded upon such contract, and that duties of a corporation arising wholly out of contract relations will not be enforced by writs of mandamus.

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It is well settled that the use of writs of mandamus is limited to the enforcement of obligations imposed by law; and duties of a corporation arising wholly out of contract obligations, and not imposed by express law or by the conditions of its charter, will not be enforced by such writs. State ex rel. v. Trustees, etc., et al., 114 Ind. 389, 16 N. E 808; Indiana, etc., Ry. Co. v. Rinehart, 14 Ind. App. 588, 43 N. E. 238; 19 Am. & Eng. Ency. Law, 742. The general railroad act of this state grants to a railroad company power "to construct its road upon or across any highway so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner so as to afford security for life and property; but the corporation shall restore the highway thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness," Section 5153, cl. 5, Burns' Ann. St. 1901. It has been frequently held that under this statute a railroad company is required to make safe and convenient crossings at the intersections of all highways, whether the same were established and opened before or after the construction of the railroad. Louisville, etc., Ry. Co. v. Smith, 91 Ind. 119; Lake Erie, etc., R. Co. v. Cluggish et al., 143 Ind. 347, 351, 42 N. E. 743; Evansville, etc., R. Co. v. State ex rel., 149 Ind. 276, 278, 49 N. E. 2; Egbert v. Lake Shore, etc., Ry. Co., 6 Ind. App. 350, 353, 33 N. E. 659; Baltimore, etc., R. Co. v. State ex rel., 159 Ind. 510, 519, 65 N. E. 508; Lake Erie, etc., R. Co. v. Shelley, 163 Ind. 36, 41, 71 N. E. 151; Elliott on Railroads, § 1102. Section 5172a, Burns' Ann. St. 1901 (Acts 1895, p. 233, c. 114), is as follows: "That it shall be the duty of each railroad company whose road or tracks cross, or shall hereafter cross, any street, avenue or alley, in any incorporated town or city in the state of Indiana, which said street, avenue or alley has been, or shall hereafter be, by addition, plat or otherwise, dedicated to the public use, to properly grade and plank or gravel its said road and

tracks at its intersection with and crossing of said street, avenue or alley in acordance with the grade of said street or avenue, in such manner as to afford security for life and property at said intersection and crossing." It is thus seen that the duty which appellee seeks to have performed by this proceeding, is one specifically enjoined by law and imposed by appellant's charter. The performance of a similar duty has been enforced in numerous instances by proceedings of this character. Indianapolis, etc., R. Co. v. State ex rel., 37 Ind. 489; Evansville, etc., R. Co. v. State ex rel., 149 Ind. 276, 49 N. E. 2; Chicago, etc., R. Co. v. State ex rel., 158 Ind. 189, 63 N. E. 224; Chicago, etc., R. Co. v. State ex rel., 159 Ind. 237, 64 N. E. 860; Baltimore, etc., R. Co. v. State ex rel., 159 Ind. 510, 65 N. E. 508. The provisions of the franchise ordinance requiring the railway company to make and maintain safe crossings were simply declaratory of the law as it existed independently of the city's enactment, and it cannot be fairly said the omitted duty complained of was one growing wholly out of contract obligations. In granting a franchise to use its streets, alleys, or public places, the city exercises its delegated legislative powers, and for that purpose could not by contract barter away its future legislative control over such highways and places. It is the plain and continuing duty of a city to prevent the unnecessary obstruction of its streets, and to see that the same are kept in good order and safe for use by the public. The railway company, a quasi public corporation, is created to facilitate and not to impede travel, and from its nature as well as charter obligations, the duty arises of keeping its intersections with highways in good repair and condition for safe and convenient use by the public. In the case of Indianapolis, etc., R. Co. v. City of Lawrenceburg, 37 Ind. 489, 495, this court disposed of a contention like that now made, in the following language: "But this ordinance is not a contract between the railroad company and the city, but simply a grant of the right of way upon certain conditions and duties subsequent to be performed by the company. And the proper means by which a corporation may be compelled to perform a plain duty-and the duty is plain in this case-is by a writ of mandate." Chicago, etc., Ry. Co. v. State ex rel., 158 Ind. 189, 192, 63 N. E. 224. See, also, Seymour Water Company v. City of Seymour, 163 Ind. 120, 130, 70 N. E. 514, and cases cited.

It is next urged that the relator could have constructed the crossing and brought an action for the cost of the same and the penalty as provided in the ordinance, and thereby have secured complete and adequate redress without resort to this extraordinary remedy. It is undeniable that either under the provisions of the ordinance or of section 5172a, Burns' Ann. St. 1901. the city might have pursued the course suggested; but the query

remains whether such a remedy must be held adequate and exclusive. This question has been answered in the negative in the case of Indianapolis, etc., R. Co. v. State ex rel., 37 Ind. 489, 494; the court saying: "Can it be said, then, that this would be an adequate remedy? It would seem to us not. Or shall it be said that it was the duty of the city to fill up and grade the streets and alleys so as to make them convenient for passage, etc., at her own expense in the first instance, and then to be compelled to bring an action against the railroad company for reimbursement? If one have a right of action for a grievance against another, either for damages or for the specific performance of an act, it is certainly not an adequate remedy to him to be compelled in the first instance to lay out $100 for the use of another, and then to have the right simply to recover back his money so laid out by him, and perhaps get legal interest on his money." The fact that, in addition to the cost, a specific penalty may be recovered in lieu of legal interest, does not affect the principle. It would further seem to be more expedient and conducive to safety that such work as elevating or lowering railway tracks and constructing crossings should be done by skilled workmen acting under orders from the company concerned, rather than by the inexperienced employés of the municipality. Our conclusion is that mandamus was an available remedy to enforce performance of this duty, notwithstanding the provisions for a different procedure. State v. New York, etc., R. Co., 71 Conn. 43, 40 Atl. 925; State ex rel. v. Minnesota T. Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656.

It is further insisted that the choice of materials to be used in making the crossing should have been left to the company, and that the provisions of the mandate requir ing the company "to plank the crossing" were not justified by the terms of the ordinance or by the facts stated in the writ. The ordinance does not purport to specify the materials required to make the crossing most convenient for use. The statute requires the railroad "to properly grade and plank or gravel its said road and tracks at its intersections." Conceding that, in the first instance, the company had an option as to materials to be used, providing the crossing was put in such condition "as to afford security to life and property," it does not follow that, after failure and refusal to construct any crossing, it may justly complain of a choice of materials made by the court. Appellee's petition asked for a plank crossing, the statute authorized the court to prescribe that material, and upon the facts and circumstances shown the court was warranted in requiring the crossing to be planked. The writ was not subject to the criticism of being too specific, but properly directed particularly what should be done in the construction of the crossing. Elliott on Rail

roads, 1106; Chicago, etc., R. Co. v. State ex rel., 158 Ind. 189, 194, 63 N. E. 224, and cases cited. The demurrer to the alternative writ was rightly overruled.

The return of the defendant below contained in substance the following averments: That the Terre Haute & Logansport Railway Company is a corporation owning and operating a line of railroad from Terre Haute to Bronson street in the city of South Bend. That on December 1, 1891, the Terre Haute & Logansport Railroad Company, to whom the original franchise was granted, ceased to own said railroad. That on October 28, 1903, defendant was served with notice from the board of public works of the city of South Bend to open Calvert street, formerly called Elmira street, across its tracks, and to plank the crossing in the usual manner, and that it failed and refused to do said work because of the following facts: that at the time of the passage of said franchise ordinance the place where Calvert or Elmira street crosses said railroad tracks was outside the corporate limits of said city, and in 1887 was taken into the corporate limits of the town of Myler, and in 1892 said town was annexed and became a part of said city. That on August 12, 1891, Frank S. Stover and 13 others filed with the board of trustees of said town a petition for the establishment of a street to be known as Elmira street over the ground where the relator now claims said street is located. The special proceedings had in connection with the establishment of said street are set out in detail, tending to show that the Terre Haute & Logansport Railroad Company was not legally notified of such proceedings. It is shown that prior thereto said company had executed an outstanding deed of trust on its property, and that the trustee therein named was not notified of said proceedings; and subsequently said deed of trust was foreclosed, and upon sale said property was duly transferred to the defendant, Terre Haute & Logansport Railway Company. It is further charged: That in tue year 1901 the relator was claiming that by virtue of the proceedings of the board of trustees of the town of Myler said Calvert or Elmira street was located and established across the right of way, land, tracks and yard of the Terre Haute & Logansport Railroad Company which, because of the special facts pleaded, said company in good faith denied. That on January 17, 1902, for the purpose of adjusting and settling said conflicting claims, the relator, acting by its board of public works, entered into a contract whereby said railway company agreed to construct a steel viaduct over its tracks at said alleged street, and the relator agreed to construct the approaches thereto, and each to perform other agreements therein set out, which contract was in writing and was by ordinance duly ratified by the common council of said city. The viaduct agreement and ratifying ordinance are set out in

full as part of the return. The agreement provided that in lieu of a grade crossing the railway company should construct a steel viaduct above and across its tracks at Elmira street, with a paved roadway 30 feet wide and sidewalks on each side 8 feet wide, the bottom of the same to be 22 feet above the top of the rail, such work to be done when the city shall have money in hand sufficient to build the approaches to said viaduct, and through its board of public works and common council shall have ordered the approaches built, appropriated the necessary funds, and notified the railway company thereof, in writing; and, when completed, the city should "maintain and keep in repair said approaches and said viaduct for all time." It is further alleged that the construction of said viaduct would cost $30,000, and that the railway company is now and at all times has been able, ready, and willing to perform all its agreements in said contract contained, but that the relator has performed none of its agreements and given said company no notice to construct said viaduct, and that the public had acquired no right to use the alleged street across its yard and tracks, except in the manner set out and by the special proceedings of the board of trustees of the town of Myler, which it is charged were wholly insufficient. Wherefore defendant says it ought not be compelled to open the alleged street across its tracks and yard at grade.

Appellant's counsel assert and argue an insufficiency of the notice and return of service in the special proceedings of the board of trustees of the town of Myler for the establishment of Elmira street, a want of notice to the mortgagee of the property to be appropriated, and, in consequence, a taking of property without due process of law, in violation of the fourteenth amendment to the Constitution of the United States. Appellee's counsel insist that the only question presented to and considered by the circuit court upon the demurrer to the return was the validity of the agreement therein pleaded. Appeals are provided primarily to enable parties to secure a review of the decisions made by trial courts, and, generally speaking, upon appeal parties will be held to the position and theory assumed and maintained by them in the court below. In the preparation of issues for trial it is necessary to require parties to adopt and make their pleadings conform to some definite theory. When a pleading has been framed upon a manifestly definite theory, it must be good upon that theory or it will not be good at all. A pleading must be judged from its general tenor and scope, and when it assumes to proceed upon a distinct theory it cannot be made good on some other by casting into it isolated statements which, if fully pleaded in separate paragraphs, might constitute a cause of action or defense. Western Union Teleg. Co. v. Young, 93 Ind. 118; Western Union, etc.,

Co. v. Reed, 96 Ind. 195, 198; Balue v. Taylor et al., 136 Ind. 368, 36 N. E. 269; 21 Ency. Plead. & Prac. 652. The manifest theory of the pleader was to show that a reasonable and bona fide controversy existed as to the validity of the proceedings for the establishment of Elmira street by the board of trustees of the town of Myler, as an inducement to and consideration for entering into the compromise agreement pleaded, and that said contract having been legally executed and not rescinded, the railway company was thereby absolved from the duty declared upon, to construct and maintain a grade crossing at the point in controversy. "A single paragraph of answer cannot perform the double function of denying the cause of action, and confessing and avoiding it. It must be one thing or the other, but it cannot be both; and its character, in this respect, must be determined from the general scope of its averments." Kimble v. Christie, 55 Ind. 140, 144. In our opinion the return under consideration was intended to confess and avoid the duty sought to be enforced, and its sufficiency must be determined upon that theory. This conclusion forbids a discussion of the legality of the various steps taken in the proceedings to establish Elmira street, as well as the constitutional question raised.

The only question remaining for decision is the validity of the contract made between the railway company and the city, for the construction and maintenance of a viaduct. The charter of the city of South Bend authorized its board of public works to "design, order, contract for and execute the erection of any culvert, bridge, way, viaduct, tunnel or aqueduct within such city, or to enter into a contract with any company or individual for the joint erection and maintenance by such company or individual and such city of any such structure,

provided

that such contract shall in all cases be submitted by said board to the council of such city and approved by them by ordinance before the same shall take effect." Acts 1901, p. 235, c. 118; section 4190n8, Burns' Ann. St. 1901. It is appropriate to note that the necessity, if any, for the viaduct provided for by the agreement pleaded was created by the existence and operation of the railroad. If the street was lawfully established across the tracks and ground of the railway company, a fact not denied by the return as we construe it, then the duty of making and maintaining a safe and convenient grade crossing devolved upon the company; and in such case the board of works would not be justified in either erecting or maintaining a viaduct solely at the city's expense. The authority, if any existed, for entering into the contract, must be found in that part of the statute which empowered the board, with the approval of the council, to make a contract with any company for the joint erection and maintenance of such a structure. The pow er of the city to make this contract is in no

wise affected by the circumstance that the agreement was the result of a compromise and settlement of an existing controversy. It is made to appear that the work contemplated has not been performed, and so far as disclosed no rights have attached by virtue of the agreement. The viaduct as planned was to be 46 feet wide, being 14 feet less than the width of the street, and was to be maintained solely by the city "for all time." Municipal corporations of this state are given exclusive control over their streets and alleys. This authority is conferred for the benefit of the public, and from it arises a continuing duty on the part of the city to exercise legislative control over its streets and alleys at all times and places when demanded by the public good. A municipal corporation has no power by contract, ordinance, or by-law to cede away, limit, or control its legislative or governmental powers, or to disable itself from performing its public duties. 1. Dillon, Municipal Cor. § 97; Elliott on Roads and Streets, § 657; Schipper v. City of Aurora, 121 Ind. 154, 159, 22 N. E. 878, 6 L. R. A. 318; City of Peru v. Gleason, 91 Ind. 568; City of Indianapolis v. Indianapolis Gas Co., 66 Ind. 396.

If the contract relied upon by appellant is valid, its obligations are secure against impairment, not only by the city of South Bend, but also by the Legislature itself; and the viaduct, once constructed, must be maintained by the city to the end of time, and the company and its successors be forever relieved of all duties now owing or hereafter to be imposed on account of the grade crossing. It is not at all improbable that the future policy of the state and the safety and convenience of the people may require the elevation or lowering of railroad tracks through cities and populous districts and the preservation of ordinary highways upon natural grades free from obstructions. It is impossible to anticipate the changes which in the future may be found expedient, and the police regulations which may become necessary, to be made, at this particular crossing. The viaduct contract in question provides for single maintenance by the city, instead of joint maintenance by both the parties, and it purports to bind the city and to limit and deny its legislative and police control over this part of the street, for all time. That these provisions of the agreement are unauthorized and invalid is not only approved by reason and sound policy, but well supported by authority. In the case of State ex rel. v. Minnesota T. Ry. Co., 80 Minn. 108, 116, 83 N. W. 32, 35, 50 L. R. A. 656, the Supreme Court of Minnesota, in holding a very similar contract void, said: "It cannot be that the common council of 1888, by the passage of a resolution providing for the construction of a bridge 60 feet in width in a street 120 feet wide, to be perpetually maintained by the city, could limit or control the legislative action of its successors, or could abdicate its

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