Randall v. Board of Commissioners , 77 Ind. App. 320 ( 1921 )

Enloe, C. J.

This was an action to recover damages alleged to have been sustained by appellants to certain real estate owned by them, located just west of the Wabash River and immediately south of the west end of the wagon bridge across said river, which said bridge is at the west end of Main street, in the city of Lafayette.

To an amended complaint in two paragraphs a demurrer was sustained, and appellants, refusing to further plead, judgment was rendered against them for costs, from which judgment this appeal is prosecuted.

The errors assigned challenge the correctness of the rulings on said demurrer.

The paragraphs of complaint are each quite lengthy, but the following material facts appear from the averments thereof:

In 1863 a corporation known as “The Main Street Bridge Company,” was duly organized under the laws of the State of Indiana for the purpose “of constructing and owning a bridge across the Wabash River in Tippecanoe- County, Indiana, and of constructing and owning an embankment or causeway, which shall , be most direct across the Bottom Land on the west side of Wabash River and connect said bridge with the said road leading westward from Lafayette.”

It further appears from the averments of said complaint that said bridge company brought suit against the then owners' of said “bottom land,” for the purpose of acquiring, by condemnation proceedings, a strip of ground 125 feet wide, and 1,560 feet long, extending from the Wabash River westwardly across the said “bottom land,” said strip being in the line of said West Main street projected; that such proceedings were had in said cause that on June 28, 1864, the court entered its judgment and decree, “that said Main Street Bridge Company stand seized in fee simple of said strip of land, appropriated by said bridge company, as and for the use of an embankment or causeway for her bridge, upon the payment of $1,347 damages, within one year;” that in July, 1864, said damages were paid, and said bridge company at once entered upon-and took possession of said strip of land; that in 1871, said bridge company sold, and in consideration of $27,300 paid to it, conveyed by its warranty deed to appellee herein its toll road and bridge across the Wabash River, situate at the foot of Main street in the city of Lafayette, together with all the rights, privileges, and appurtenances thereunto belonging; that in June, 1875, the appellee, by its warranty deed, conveyed to one Martin, a remote grantor of appellant, a strip of ground twenty-two and one-half feet wide, off the southerly side of said 125 foot strip, said strip extending from the east end of said 125 foot strip for some distance to the west, and which strip now forms the north part of appellant’s lands, alleged to have been damaged, and for which this suit is brought; that for more than twenty years prior to March, 1913, a bridge erected by appellee for the accommodation of wagons and other vehicles had been maintained together with the embankment or causeway upon which the roadway was constructed by the appellee herein; that the high waters of said river in March, 1913, undermined one of the piers of said bridge causing the samé to settle and said bridge to become unsafe; that in September, 1913, the appellee entered into a contract for the construction of a new bridge across the Wabash River at said point, to take the place of the one so injured in the preceding March; that according to the plans and specifications adopted for said new bridge, the west end thereof was located 170 feet to the west of the west abutment of the old bridge.

It further appears, from the averments of the complaint, that the said levee or causeway, extending westward from the west abutment of said old bridge, was eighty feet in width, and was constructed along the center line of said 125 foot strip; that said levee was twenty-five feet high; that the low water banks of said river at said point are twelve feet high; that said levee or causeway was a public highway and was without openings in said embankment; that from the west abutment of said old bridge, a levee had been constructed southward to the right of way and embankment of the Lake Erie and Western Railway, and along the east line of appellant’s land, thus protecting his said lands from overflow by the water from said river; that west of said bridge and on the southerly side of said highway a sidewalk had been constructed, and that the appellant was the owner of a building, situate on the northerly end of his said land, which building had been so built that the floor thereof was on a level with said sidewalk; that said sidewalk extended to the southerly property line of appellee, and that said building of appellant was constructed along his northerly line and abutted said sidewalk, and that appellant had access for ingress and egress to and from said building to said highway across said sidewalk.

It further appears that in preparation for the construction of said new bridge the east end of said levee, or causeway, for a distance of 170 feet, from the old west pier to the new west pier, was entirely removed and taken away; that a pier for the new bridge is located 125 feet east of said west pier, and north of appellant’s land; that said portion of said new.bridge conforms to the old levee, or causeway, as to the center lines thereof; that said new bridge, as to the floor thereof, is nine feet higher than the old roadway; that the roadway of said new bridge is forty feet in width from curb to curb, with a sidewalk éight feet in width on either side thereof; that on both sides of said bridge is constructed a massive stone railing; that since the removal of said embankment the waters of said river flow over and upon the surface of appellant’s property, and carry vast quantities of earth, sand, and debris thereon; that appellant’s access to said property has been, by the work of building said bridge as aforesaid, entirely cut off and destroyed and that said property is now of no value, and that they have sustained damage in the sum of $12,000.

From the foregoing facts it will be seen that to the south of said new bridge, and between the said bridge and appellant’s northerly property line, is a space of about ten feet,- — -land owned by the appellee, — and that appellant is without any means of getting from said roadway, or bridge, onto his land.

The theory of appellant’s complaint is manifest from the following averments, as found in his complaint, viz.: “That plaintiffs and their grant,ors, immediate and remote, for more than twenty years prior to the 9th day of September, 1913, owned, and had a special interest and easement in said levee and bridge abutment, at the west end of said Main Street bridge, adjoining plaintiff’s property, and the maintenance of said bridge abutment and levee was necessary to the use and enjoyment of plaintiff’s property, and the preservation of plaintiff’s soil, and in the protection of plaintiff’s property against waters of Wabash River; * * * that the plaintiffs owned the right and easement of all the support and protection, against high waters of the Wabash River, which plaintiffs property had received, and of which plaintiffs and their grantors, immediate and remote, had been in possession for more than twenty years prior to said 9th day of September 1913.” (Our italics.)

There is no allegation in said complaint that the appellee herein, in any way, in the matters connected with the building of said new bridge, did not follow the law. In fact the said complaint expressly alleges, “That the defendant, acting within the scope of its authority,” let the contract for the removal of said levee. It is also expressly alleged, “that the defendant, acting within the scope of its authority, took su'ch necessary steps and action to the end that on the 9th day of September, 1913, said defendant let and entered into a contract for the construction of a new bridge across said Wabash River from the west end of Main street, in said city of Lafayette, according to certain plans and specifications.”

It further appears from the averments of the complaint that no part of appellant’s land has been actually taken and appropriated in said work. In fact, as before stated, the new bridge and the abutments thereof are entirely on land owned by appellee. The averments show that to the south of the piers of said bridge, there is three and one-half feet of land owned by appellee.

That the appellants have suffered a damage in the matter of this property is without question but the nature of this damage, whether direct or simply consequential, is the matter we must now consider.

The appellee insists that the averments of the complaint show that no. property of appellant’s was taken, and that therefore the damage complained of is merely consequential, and it therefore insists there can be no recovery. The appellants insist that they had a “special interest and easement in said levee and bridge abutment,” which interest and easement was property, and which was taken, and also that they had an easement and property right in said levee and highway, as a way of egress and ingress from and to their said premises, and which also was taken, and that therefore they are entitled to the damage they have sustained.

The answer to the question presented, as we view it, depends upon the validity of the claim of appellants to a property right in and to the said embankment, and to a way of egress and ingress across said sidewalk. If appellants had any property right as against the appellee, in and to said embankment, that right was taken from them. If they had any property right of egress and ingress, as against the appellee, in and to said sidewalk, that right was also taken away from them. If, on the other hand, the appellants had no such rights as those claimed, then the provision of our Constitution relative to the taking of private property for public purposes, can, as we view it, have no application to the facts of this case, and the damages sustained by appellants are simply consequential.

The Main Street Bridge Company was authorized by statute to acquire a fee of the lands on which to construct its road and bridge, (2 R. S. 1852, §702) and in the proceedings in condemnation brought by it, as set forth in the complaint, it did, by the judgment and decree of said court, acquire title to said 125-foot strip, in fee simple. This title it conveyed to the appellee, which still holds the same except said twenty-twó and one-half foot strip sold as hereinbefore stated. But it is urged that the sale of said strip conveyed a reversionary interest in the residue, to the center line of said 125 foot strip, and that this gave the basis for the right of easement claimed.

It will be noted that the deed to the said twenty-two and one-half foot strip conveyed the same by definite bounds. As said by Chancellor Kent: 3 Kent’s Commentaries (12th ed.) p. [572] : “But it is competent for the owner of a farm or lot, having one or more of its sides on a public highway, to bound it by express terms on the side or edge of the highway, so as to rebut the presumption of law, and thereby reserve for himself his latent fee in' the highway. He may convey the adjoining land without the soil under the highway, or the soil under the highway with the adjoining land. If the soil under the highway passes by a deed of the adjoining land, it passes as parcel of the land and not as appurtenance.” See also Gebhardt v. Reeves (1874), 75 Ill. 307; Helm v. Webster (1877), 85 Ill. 116.

1. By the deed executed by the appellee, conveying said strip, it was conveying a part of the land held by it in fee for highway purposes. It is a maxim of the law that public grants are to be construed strictly. Nothing passes by implication. U. S. v. Arredondo (1832), 6 Peters 736, 8 L. Ed. 547, and authorities there cited. This is especially true where the right claimed tends to impair the state’s power to exercise its ordinary governmental functions, or to suspend its powers of improvement and rendering safe an important line of travel. Charles River Bridge v. Warren Bridge (1837), 11 Peters 420, 9 L. Ed. 773.

2. In harmony with the foregoing authorities we hold that by and under the said deed executed by appellee, conveying said twenty-two and one-half foot strip, appellants nor their remote grantor, acquired any reversionary right to the fee of said highway, nor to any special interest therein.

3. Did the appellee acquire any “special interest” or easement in and to said embankment and highway, by reason of an uninterrupted use of the same as a way of egress and ingress to their property, by themselves and their grantors, for more than twenty years?

In considering this question it is important to keep in mind that the fee of said lands was in appellee; that appellee was holding it for the public; that appellee in so holding it, was simply a representative of the “sovereign,” — “the people.”

It was a maxim of the old common law that no prescriptive right could be asserted against the King. In this country we find the maxim stated thus, “No prescriptive right can be obtained against the Government.”

In the case of Commonwealth v. Sisson (1905), 189 Mass. 247, 75 N. E. 619, 1 L. R. A. (N. S.) 752, 109 Am. St. 630, the Sissons were owners of a sawmill, and discharged the sawdust therefrom into a certain named river. The fish and game commissioners of Massachusetts, acting under authority of a statute, had ordered the Sissons to refrain from so discharging the sawdust, because the same was injurious to the fish in said river. They refused to comply with that order. An action having been brought against them they sought to defend on the ground of a prescriptive right.' Upon the trial they requested the court to hold the law to be as follows: “That the defendants, and the predecessors in title, having been discharging sawdust from their sawmills for more than twenty years consecutively, under a claim of right, into the Konkapot River, have acquired by prescription a title to such right, and such right is their property, of which they cannot be deprived without compensation.”

Which request was by the trial court refused, and on appeal the Supreme Court in passing upon the question presented said: “The right to run a sawmill on the banks of a brook or a river is, like all rights of property, subject to be regulated by the Legislature when the unrestrained exercise of it conflicts with other rights public or private. The defendants’ contention that they have a prescriptive right to discharge sawdust into the river (even if it kills or injures the fish therein) which prescriptive right cannot be taken away or impaired without compensation being made therefor, means this and nothing more: Where the Legislature, .up to the passage of the act here in question, had not regulated the business of sawing wood on the banks of streams having in them edible fish, and where, in the absence of such regulation, the defendants had discharged sawdust into the stream for thirty years, the. people have lost the power to regulate the conflicting rights of sawmills on the bank of the stream and to preserve the fish in the stream itself. The statement of the proposition is enough to show that there is nothing in it.”

Are appellants entitled to damages for the consequential damages they have sustained?

4. In the City of Chicago v. Jackson (1902), 196 Ill. 496, 63 N. E. 1013, which was an action by a property owner to recover damages alleged to have been sustained by reason of the depreciation of his property consequent upon the lowering of the grade of a street in the construction of a subway, it was said: “Laws and ordinances relating to the comfort, health, convenience, good order and general welfare of the inhabitants are comprehensibly styled ‘police laws or regulationsand it is well settled that- laws and regulations of this character, though they may destroy the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbance. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. The safety of the people is the supreme Object of the law.” Dillon, Municipal Corporations §212; Bancroft v. Cambridge (1879), 126 Mass. 438.

In the case of the City of Chicago v. Rumsey (1877), 87 Ill. 348, which was an action for damages alleged to have been sustained in consequence of a tunnel under the Chicago river in LaSalle street, the court held that the fee in the soil of the street in the original town of Chicago, laid off by the canal commissioners, under the provisions of the law, was either in the state or in the city, for the use of the public generally and that it was competent for the city under legislative authority of the state to construct a tunnel in the street, and if done in a proper manner and without unreasonable delay, no action would lie against the city in favor of an adjoining lot-owner whose property had received no physical injury.

In the case of the Transportation Co. v. Chicago (1878), 99 U. S. 635, 25 L. Ed. 336, which was an action for damage to property alleged to have been occasioned by reason of the construction of the LaSalle street tunnel under the Chicago river, the court said: “The case has been argued on the assumption that the erection of the coffer-dam, and the necessary excavations in the street, constituted a public nuisance, causing special damage to the plaintiffs, beyond those incident to the public at large, and hence, it is inferred, the city is responsible to them for the injurious consequences resulting therefrom. The answer to this is that the assumption is unwarranted. That cannot be a nuisance, such as to give a common-law right of action, ivhich the law authorizes. (Our italics.) We refer to an action at common law such as this is. A Legislature may and often does authorize and even, direct acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be. such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it. If this were not so, the suffering party would be entitled to repeated actions until an abatement of the erections would be enforced, or perhaps he might restrain them by injunction.

“Here the tunnel of which the plaintiffs complain, or rather its construction, was authorized by an act of the legislature of the State, and directed by an ordinance of the city councils. This we do not understand to be denied, and it certainly cannot be. The State, and the city councils, as its agents, had full power over the highways of the city, to improve them for the uses for which they were made highways, and the construction of the tunnel was an exercise of that power. Since LaSalle Street was extended across the river, the city not only had the power, but it was its duty, to provide for convenience of passage. This it could do either by the erection of a bridge, or by the construction of a tunnel under the river and along the line of the street. And the grant of power by the legislature to- build a bridge or construct a tunnel carried with it, of course, all that was necessary for the exercise of the power. We do not understand this to be controverted by the plaintiffs in error. Their argument is, that though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damages caused to persons specially injured. To this we cannot assent.

“It is immaterial whether the fee of the street was in the State or in the city or in the adjoining lot-holders. If in the latter, the State had an easement to repair and improve the street over its entire length and breadth, to adapt it to easy and safe passage.

“It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the State, and performing a public duty imposed upon it by the legislature; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country. (Citing authorities.) * * *

“The State holds its highways in trust for the public. Improvements made by its direction or by its authority are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the State to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it does not protect the agents for improving highways which the State is compelled to employ. The remedy, therefore, for, a consequential injury resulting from the State’s action through its agents, if there be any, must be that, and that only, which the legislature shall give. It does not exist at common law.”

In Roberts v. City of Chicago (1861), 26 Ill. 249, the action was for damages to property caused by raising the grade of the street in front of plaintiff’s property, so as completely to block up and destroy access to his property, in consequence whereof, the plaintiff was put to large expense in raising his building to the level of the street, and he was also alleged to have been otherwise injured. The court, in passing upon the question then'before it said: “We recognize unhesitatingly as sound law, that the city has the right to establish and change the grades of the streets, and to compel the owners of lots to. grade the streets accordingly. * * * and when a grade is established or altered in good faith, with the purpose of improving the streets, the court will not inquire whether it was the best grade which could have been adopted.”

In the case of Com’rs of Coffey Co. v. Venard (1872), 10 Kas. 95, the said board of commissioners, acting under statutory authority had entered an order vacating a portion of a certain highway. After said order had been entered the appellee filed a claim for damages to his real estate suffered because of such vacation. He obtained a verdict and judgment in the lower court and upon appeal, in passing upon the matter presented the court said: “The main question in this case, and the only one which we think it is necessary to consider, is, whether a county, when the commissioners thereof vacate a county road, is liable in damages to any person who may sustain some loss in consequence thereof. We think a county is not so liable. There is no statute that makes it liable, and we know of no principal of the common law that would create such liability. The county through its officers has an undoubted legal right to vacate county roads. And neither the county nor its officers commit any wrong by so doing; nor do they take any person’s' property; and therefore, if any consequential loss results to any individual it must be damnum absque injuria. Nor can it make any difference that the party claiming damages has some interest in the road different from that of the public in general. It requires more than a peculiar interest in a thing to entitle a party to maintain ah action. It requires that the party against whom the action is prosecuted should have committed, or is about to commit some wrong. * * * Nor can it be claimed that the claimant in this case, or any other person, has any vested right or interest in the road as a road. Because it has once been to the interest of the public to open up and travel on a particular road is no reason that the public should forever afterward be compelled to travel on such, road, and pay the expenses of keeping it in repair, or else pay all damages that might result to individuals by reason of its vacation.”

In the case of Bradbury v. Walton (1893), 94 Ky. 163, 21 S. W. 869, a certain public highway had been closed by order of the county court acting under statutory authority.. The appellant claimed damages on account of such closing. It was urged that the statute was unconstitutional in that it authorized the taking of private property for public purposes without just compensation. In passing upon the matter then before it the court said: “The appellee closed the road on his own land, and therefore no trespass was committed by an entry on appellant’s land, and unless the latter has some right of property in this easement, not only on his own land, but on the land of the appellee, no action can be maintained by reason of the wrong complained of.

“The public highways of the State, known as county roads, are opened and maintained for the public, and not for mere individual use, and whenever it may be deemed proper to close, alter, or discontinue a county road the power is given to the county court to make such changes as may be conducive to the public welfare, and the right to close a highway that affects the travel on a turnpike is expressly given the county court, to be exercised only when the public good requires it, and of this the county court must be the exclusive judge, and its action only subject to review by some higher tribunal. * * *

“A private citizen has no right of property in a public road, although it passes over his own land, unless he owns the land itself subject to the easement. If the owner of land abutting on a public road has a right of property in the easement, it necessarily follows that no change or alteration can be made without first making compensation to the owner, as it would be a taking of private property for public use without compensation ; but he has no other interest except such as is common to the entire public, and where he is the owner of the land and the road is discontinued, its use then reverts to him to the extent he has title, but no further, * * * The State creates the easement for the entire public; its use is that of the public, one citizen having as much right to this use as the other, and when its abandonment or non-use is deemed necessary for the public good, the county court may discontinue it altogether, and in that tribunal the question must be made.”

In Lexington, etc., R. Co. v. Applegate (1839), 8 Dana (Ky.) 294, 33 Am. Dec. 497, the court said: “An ordinary public way may be discontinued or applied to some other public purpose than that for which it was first established, without any legal liability for pecuniary compensation to the local public, or to any owner of adjoining land — because neither such public nor proprietor had any right of property in the way, or any other legal interest in it than that which was common to all the people.”

In the case of Morris v. City of Indianapolis (1911), 177 Ind. 369, 94 N. E. 705, Ann. Cas. 1915A 65, it was said: “The rule appears to be well settled that where work of public necessity and convenience has been performed within the limits of a public street of a city or town, through the properly constituted officials under statutory authority, and without negligence or lack of skill, no legal liability arises against the city or town in favor of an abutting property owner for conse-' quential injury or damages sustained by him. This rule applies in full force in denying a right of action to a property owner for injuries or damages resulting on account of the alteration or change of the grade of the street or streets on which his property abuts. It is equally well settled by our own decisions, that such consequential injury does not come within the provision of the state Constitution, which prohibits the taking of private property for public use without compensation therefor béing first assessed and tendered.”

Applying the principles laid down in the foregoing cases to the facts in this case as stated in said complaint, we must hold that appellants did not have, as against the public authorities, any property right in and to said street and sidewalk, as a way of ingress and egress to and from this said property; that the damage suffered by them under the facts alleged was simply consequential.

Counsel for appellants have cited numerous authorr ities as sustaining their contention that they had a property right in and to said street and sidewalk, as a way of ingress and egress to and from said property.

It is the law that every property owner has such right as against all private persons, or private corporations, and having such right, the authorities neither of city nor state have any right to take such right of access from the owner of such property, and confer the same, or a superior right upon another. Therefore neither city councils nor the legislature, can take from the owner of a lot his way of egress, by authorizing a railroad company to lay its tracks, build a grade, or construct any structure for its advantage, which involves the taking of such property owner’s right of access. All persons stand equal before the law. The cases relied upon by appellants involve taking of access to property, by railroads, etc., and are therefore not in point.

The court did not err in sustaining said demurrer. The judgment is affirmed.

Remy, Batman and McMahan, JJ., concur. Dausman, J., concurs in result. Nichols, P. J., dissents.