Graham v. Chicago, Indianapolis & Louisville Railway Co. , 39 Ind. App. 294 ( 1906 )

Roby, C. J.

Appellant’s complaint was in one paragraph. Appellee answered by a general denial. Trial by jury. General verdict for appellant assessing damages at $850. Appellee’s motion for judgment on answers to interrogatories returned with the general verdict, was sustained. This action of the court is challenged by the assignment of errors.

1. It is averred in the complaint that appellee is a corporation owning and operating a railroad through Floyd county and through certain real estate owned by appellant therein; that extending through appellant’s premises is a small branch or creek which is a natural watercourse and drains said premises; that said railroad was built upon an embankment across said stream; that, in order to permit the free flow of water, appellee’s predecessor in the ownership of said railroad built and maintained an opening in said embankment, with a trestle over it upon which the track was laid; that the opening so made was adequate; that within the last five years, the exact date being unknown to the plaintiff, the defendant or its immediate predecessor in the ownership of the road wrongfully and negligently reduced said opening in size and rendered the same inadequate for such purpose; that the defendant has so continued and maintained such obstruction, and so continued to cause the water in said watercourse to be diverted and changed, ever since it has owned said railroad, which is averred to have been for more than five years, and that during the last three years the waters of said watercourse have been backed upon and overflowed plaintiff’s land, destroying his crops, etc. The charge is thus clearly made that the watercourse was negligently obstructed and that such obstruction was negligently maintained by the defendant. The original obstruction is averred tó have been created by the defendant “or its immediate predecessor.” The answers to interrogatories show that the defendant did not create it in the first instance. So, without determining whether the averments upon that subject were introductory to the specific charge of negligent maintenance, or intended as a distinct ground of liability, it remains to consider whether such maintenance furnishes a basis for the recovery of damages from the defendant.

2. Every railroad corporation is given by statute power to construct its road upon or across any stream of water, watercourse, road, highway, railroad, or canal, so as not to interfere with the free use of the same, and in such manner as to afford security for life and property, and subject to the restriction that it shall restore the stream or- watercourse, road or highway, thus intersected to its former state, or in a sufficient manner not to impair its usefulness. §5153 Burns 1901, §3903 R. S. 1881.

3. The obligation thus -imposed is unequivocal in terms. The corporation which chooses to avail itself of the power thus granted takes it subject to the liabilities and restrictions expressed in the act. The duty which it assumes is a continuing one. Baltimore, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 510; Chicago, etc., R. Co. v. State, ex rel. (1902), 158 Ind. 189; 2 Wood, Railroads (Minor’s ed.), §276; Evansville, etc., R. Co. v. Crist (1889), 116 Ind. 446, 454, 2 L. R. A. 450, 9 Am. St. 865; Evansville, etc., R. Co. v. Carvener (1887), 113 Ind. 51; Lake Erie, etc., R. Co. v. Shelley (1904), 163 Ind. 36.

4. The obstruction of a stream, watercourse, road, railroad, or canal, by the construction of a railroad upon or across it, so as to interfere with its free use, is beyond the power of any railroad corporation, and failure on the part of any such corporation to restore such stream, watercourse, road, highway, railroad, or canal thus crossed by its railroad to its former state, or in a sufficient manner not unnecessarily to impair its usefulness, is a direct violation of a" statute which gives a right of action to one-injured thereby. Pittsburgh, etc., R. Co. v. Greb (1905), 34 Ind. App. 625; Indianapolis, etc., R. Co. v. Stout (1876) , 53 Ind. 143; Evansville, etc., R. Co. v. Garvener, supra; Evansville, etc., R. Co. v. Crist, supra; Louisville, etc., R. Co. v. Smith (1883), 91 Ind. 119; Louisville, etc., R. Co. v. Phillips (1887), 112 Ind. 59, 61, 2 Am. St. 155; Toledo, etc., R. Co. v. Milligan (1891), 2 Ind. App. 578; Terre Haute, etc., R. Co. v. Clem (1890), 123 Ind. 15, 7 L. R. A. 588, 18 Am. St. 303.

5. The present owner of such railroad is liable to respond in damages for injury thus negligently caused, notwithstanding that the obstruction was originally created by its predecessor in the ownership of the railroad, because each day of the continuance of such obstruction is a fresh violation of the statute. Pettis v. Johnson (1877) , 56 Ind. 139, 149; Lake Shore, etc., R. Co. v. McIntosh (1895), 140 Ind. 261, 268; State v. Louisville, etc., R. Co. (1882), 86 Ind. 114.

6. The proposition that the grantee of real estate upon which there is an existing nuisance of a nature not essentially unlawful is liable to an action therefor only after notice to remove or abate it (City of Valparaiso v. Bozarth [1899], 153 Ind. 536, 538, 47 L. R. A. 487) affords no aid to appellee, for the reason that an act done in defiance of a mandatory statute (Evansville, etc., R. Co. v. Crist [1889]; 116 Ind. 446, 2 L. R. A. 450, 9 Am. St. 865) is “essentially unlawful.” To require notice of its own delinquency to be given in such a case to the corporation would be to put the burden of its disregard of the statute upon others, which cannot be allowed. Davis Coal Co. v. Polland (1902), 158 Ind. 607, 618, 92 Am. St. 319; Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 58 L. R. A. 944.

Judgment reversed. Cause remanded, with instructions to overrule appellee’s motion for judgment on answers to interrogatories and for further proceedings.

Black, P. J., Comstock, Myers and Eobinson, JJ., concur. Wiley, J., dissents.