1. Drains 25-Modes of procedure prescribed by Civil Code resorted to in special proceedings, where no provision is made in act governing latter. Modes of procedure and rules of practice prescribed by Civil Code, when applicable, may be resorted to in special proceedings, where no provision is made in act governing them. 2. Drains 36(3)-How and where petitioners may appeal from judgment dismissing petition stated. Under Burns' Ann. St. Supp. 1921, § 6143g, appeal to Supreme Court from dismissal of drainage petition by circuit court, after drainage commissioners have reported favorably, laid out ditch, and made assessments, may be taken by serving written notice on appellees or their attorneys and clerk of court, and filing transcript, with assignment of errors within 180 days from rendition of judgment, as provided by Burns' Ann. St. 1914, 88 671, 672, 681, 696, governing appeals generally. Appeal from Circuit Court, Jackson County. Petition by John E. Hunsucker and others for construction of drain. From judgment dismissing proceeding on motion of Lucinda Montel and others, petitioners appeal. On motion to dismiss appeal. Motion overruled. Thos. H. Branaman, of Brownstown, for appellants. O. O. Swails, of Seymour, J. Ross Robertson, of Brownstown, and Shea & Hottell, of Indianapolis, for appellees. PER CURIAM. Appellants filed a petition for the construction of a drain, and such proceedings were had thereon that the matter was referred to drainage commissioners, who reported in favor of constructing the proposed improvement, laid it out, and reported assessments of benefits and damages against lands which they reported were affected. Thereupon appellees moved to dismiss the drainage proceeding, for reasons not covered by any express provision of the statute on the subject of dismissal, but which the trial court deemed sufficient. The motion to dismiss was sustained, on May 15, 1924, and the court entered a judgment "that the petition and cause of action herein be and the same is hereby dismissed," which action is complained of as being erroneous. Appellants did not file an appeal bond within 30 days, nor the transcript within 60 days after they did get an appeal bond on file, as would be required in case of an appeal from an order "approving and confirming the assessments and declaring the proposed work of drainage established," if the judgment had been in favor of the petitioners. Section 6143, p. 704, Burns' Supp. 1921 (section 1, c. 90, p. 296, Acts 1917). Neither did they comply with section 679, Burns' 1914 (section 1, c. 30, p. 71, Acts 1917), of the Civil Code, which authorizes appeals in term to be taken in certain cases without the service of notice. But on the 23d and 25th of August, 1924, they served notice on appellees and the clerk of the court that they thereby appealed from said judgment to the Supreme Court, which notices complied with the provisions of section 681, Burns' 1914 (section 640, R. S. 1881), and on August 27, 1924, they filed with the clerk of the Supreme Court a transcript of the proceedings in the trial court, together with said notices and proofs of service, and an assignment of the errors relied on. This was only 104 days after the rendition of the judgment, and was well within the time allowed for taking an appeal in an ordinary civil action, though after the expiration of the time allowed for appealing from a judgment establishing a work of drainage and ordering its construction, as above stated. Appellees have filed a motion to dismiss this appeal, which presents for determination the question whether or not an appeal in a drainage case from the dismissal of a drainage petition after the matter has been referred to drainage commissioners, and such commissioners have reported that the prohave laid out the proposed ditch and made posed work will be of public utility, and assessments of benefits and damages, may be taken under the general statute regulating procedure in civil actions. The special stat ute only provides (our italics) that: "The order of the court approving and confirming the assessments, and declaring the proposed work of drainage established shall be final and conclusive, unless an appeal therefrom to the Supreme Court be taken and an appeal bond filed within thirty (30) days. * A transcript * * shall be filed of the appeal bond." within sixty (60) days after the filing * * * But it contains no special provisions with relation to taking an appeal from a judgment that does not establish the proposed work of drainage and approve and confirm the assessments. And it is obvious that a dismissal of the petition and proceeding does not "confirm the assessments" nor "establish the proposed work," although making final disposition of the cause. [1] Appellees insist that the silence of the act concerning drainage as to the manner of appealing from an order of dismissal operates to deny the right of appeal. But the modes of procedure and rules of practice in civil actions prescribed by the Civil Code, when applicable, may be resorted to in spe (146 N.E.) cial proceedings, to supply omissions, where no provision is made in the act governing NEW JERSEY, I. & I. R. Co. v. NEW YORK the special proceedings. Shields v. Pyles, CENT. R. CO. (No. 11794.) 180 Ind. 71, 78, 99 N. E. 742; Sowers v. Cin- (Appellate Court of Indiana, Division No. 2. cinnati, etc., R. Co., 162 Ind. 676, 683, 71 N. E. 134; Daniels v. Bruce, 176 Ind. 151, 155, 95 N. E. 569. [2] At the same session at which the section of the statute relating to procedure in drainage matters (section 6143g, supra) was last amended, the Legislature passed a supplemental act, the last section of which pro vides as follows: Jan. 14, 1925.) 1. Railroads 90-Railroad entitled to compensation for maintenance of common crossing. A railroad is bound to exercise due care for erty to be transported, and hence, where one safety of its passengers and servants and proprailroad constructed a crossing over road of another, increasing hazards inherent in operation of trains by latter, latter is entitled to adequate compensation for maintenance of such crossing. 74-Railroad desiring 2. Eminent domain "The rules of practice, and procedure, the taxation of costs, the method of collecting assessments and of disbursing funds and all other matters and things pertaining to the said assessment contained in the drainage act heretofore referred to and amendments thereto and acts supplemental thereof shall, so far as applicable, apply to the proceedings herein and resort shall be made to the general code for any deficiencies in such procedure. This act shall not be construed as repealing or modifying any of the provisions of the drainage act or any acts amendatory thereof or supplemental thereto but shall be deemed and taken as supplemental thereof." Burns' Supp. 1921, §tained and paid in advance. 6143g (section 7, c. 22, p. 65, Acts Spec. Sess. 1920). to cross track of another must pay compensation in advance. We think it clear that: "In the absence of any provision of the drainage act to the contrary we may properly resort to the general procedure provided for the government of the courts wherein such jurisdiction is vested." Karr v. Board, 170 Ind. 571, 581, 85 N. E. 1. * In view of Const. art. 1, § 1, and Burns' Ann. St. 1914, § 928 et seq., where one railroad having no absolute right to do so desires to cross road of another, first step is to attempt to determine compensation, and if that failed to institute condemnation proceedings, in which case compensation must have been ascer 3. Railroads 90-Railroads may agree as to maintenance of crossing unless prohibited by statute. The right of railroad companies to contract concerning their property will not be abridged except for grave and weighty reasons, and where one railroad desires to cross road of another, nothing but a statutory inhibition resting on ground of public policy will justify holding that they cannot settle by agreement question as to who shall construct crossing, type thereof, and cost of maintenance. 4. Railroads 90-Statute held not to prohibit railroads from contracting as to maintenance of common crossing. The Civil Code provides that "appeals may tion 632, R. S. 1881). The true purpose of Acts 1873, c. 76, §§ 1, is to require that each company shall care for its own interest in common railroad cross ing, which duty is not limited by words "unless such words merely indicating right of compaotherwise agreed to between such companies," nies to agree otherwise concerning expense, etc., and hence act does not prohibit companies from agreeing that one company shall bear expense of maintenance. Appeal from Superior Court, St. Joseph County; Lenn J. Oare, Judge. Action by the New York Central Railroad Company against the New Jersey, Indiana & Illinois Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. This action was instituted by the New York Central Railroad Company against the New Jersey, Indiana & Illinois Railroad Company to recover for work and labor done and for materials furnished and used in the maintenance and replacement of a railroad Appellees' motion to dismiss the appeal is crossing pursuant to a written contract. A overruled. demurrer to the complaint on the ground For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that it does not state facts sufficient to constitute a cause of action was overruled. The defendant refused to answer, and judgment was rendered for the plaintiff in the sum of $914.18. The essential facts averred in the complaint are embodied in the following state ment: "For many years prior to the execution of the contract which is the foundation of the action, the Indiana, Illinois & Iowa Railroad Company (hereinafter called the Iowa Company) owned and operated a railroad which extended southward from the city of South Bend and connected with the Wabash Railroad at Pine, Ind. In January, 1905, the New Jersey, Indiana & Illinois Railroad Company (hereinafter called the New Jersey Company) was engaged in the construction of its road; and in order that it might proceed on the line' which it had selected for that purpose, it became necessary to cross the right of way and tracks of the Iowa Company at a place in Portage township, St. Joseph county. At the place of the proposed crossing, the Iowa Company held the title to its right of way by purchase. These two companies entered into a written contract by the terms of which the Iowa Company granted to the New Jersey Company the right to construct, maintain, and use not to exceed two tracks upon and across the right of way and tracks of the Iowa Company at a common grade. The contract further provides that all crossings in the tracks of the Iowa Company shall be furnished and maintained by the Iowa Company and the cost of construction and maintenance shall be borne by the New Jersey Company, bills therefor to be rendered monthly by the Iowa Company, and to be paid within 60 days by the New Jersey Company. "Immediately after the execution of the contract, the New Jersey Company entered upon the right of way of the plaintiff's predecessor in title, under and by virtue of the contract and not otherwise, and constructed its crossing over and upon the tracks of the Iowa Company at a common grade and at the place designated in the contract. In April, 1914, pursuant to certain consolidation proceedings, the plaintiff acquired the railroad property which formerly belonged to the Iowa Company, and acquired all the right and interest of the Iowa Company in and to the contract aforesaid. and the defendant, on all occasions and at all times, save and except as hereinafter averred, paid the bills so rendered. "Pursuant to the terms of the contract, in the month of May, 1921, the plaintiff furnished labor, repairs, and material and expended money in maintaining the crossing, which were of the fair and reasonable value of $1,828.37, a bill of particulars of which is filed herewith and made a part hereof as Exhibit A. A statement of the work, repairs, and material and money expended as aforesaid was rendered to the defendant, as provided in the contract, and the defendant has refused to pay the amount therefor, and denies liability for the payment thereof. The defendant has paid and the plaintiff has accepted without prejudice to the rights of either party one-half of said sum, leaving a balance due the plaintiff from the defendant in the sum of $914.17, which sum is now due and unpaid, and which sum the defendant refuses to pay and denies liability for the payment thereof. More than 60 days have elapsed since the plaintiff rendered to the defendant its itemized account as aforesaid. The plaintiff and its predecessors have at all times kept and performed all the conditions of the contract to be performed by it and its predecessors. "At the crossing involved herein the tracks intersect at right angles, or nearly so. At each of the four corners of the crossing the steel rails are cut and separated in order to furnish an open space through which the wheel flanges pass; and at each corner the rail of either track is securely bound to the converging rail of the other track, by a rectangular piece of steel (or iron) fastened to both rails by bolts. The cross-rails are made firm by fastening each of them to a heavy piece of steel (or iron) by bolts; and attached to either end of each crossrail is a rail of considerable length, commonly called a guard rail, and each guard rail is securely fastened by bolts to the regular rails. Within the square formed by the four cross-rails is a rectangular quadrangle made of heavy steel (or iron) and commonly known as a crossing frog. The crossing frog is securely fastened to the cross-ties. Ordinary cross-ties are 8 feet and 6 inches in length and are laid at right angles to the steel rails. The ties under the crossing are and are required to be about 17 feet in length and are and are required to be laid diagonally, in order to give effective support to the trains of either company. "The construction of the crossing is of such character that it is impossible for either company to repair and maintain any separate part or portion thereof. The plaintiff cannot repair or replace its own track at the crossing without at the same time repairing and replacing the defendant's track; nor can the defendant repair or replace its track at the crossing without at the same time repairing or replacing the plaintiff's track." "The defendant has never acquired the right to cross the tracks and right of way of the plaintiff by condemnation proceedings, nor in any manner other than by virtue of the contract; and the plaintiff or its predecessors in title have ever received any consideration therefor except as provided in the contract. Since its construction the crossing has been continuously maintained and used as a railroad crossing, and is now maintained and used as a railroad crossing over which the trains of the defendant and the trains of the plaintiff pass in the daily operation of their respective roads. Since the construction of the crossing the plaintiff and its predecessors in title have repaired and maintained the crossing in accordance with the terms of the contract, and have rendered from time to time bills therefor Bertrand W. Walker, of Chicago, Ill., John to the defendant for the labor and material oc- Gavit, of Hammond, and Yeagley & Wolfe, of The assignment of error challenges the ruling on the demurrer. Jones, Montgomery & Obenchain, of South Bend, for appellant. (146 N.E.) DAUSMAN, C. J. (after stating the facts, full and fair determination of the whole matas above). There is no contention that the entire contract is void. The only contention is that the provision of the contract which stipulates that the Iowa Company shall make all needful repairs from time to time, and that the cost thereof shall be paid by the New Jersey Company is void on the ground that it is violative of the policy of the state as declared by statute. It is conceded that in all other respects the contract is valid and binding upon the parties to this appeal. ter without settling the rights of the parties in respect to these inherent elements. Was it lawful for the parties to settle these things by agreement? Their right to contract concerning their property will not be abridged except for grave and weighty reasons. Callicott v. Allen, 31 Ind. App. 561, 67 N. E. 196; Moon v. South Bend School City, 50 Ind. App. 251, 98 N. E. 153; Burley Tobacco Soc. v. Gillaspy, 51 Ind. App. 583, 100 N. E. 89; Hogston v. Bell, 185 Ind. 536, 112 N. E. 883; 13 C. J. 427, and cases there cited; 6 R. C. L. 710, and cases there cited. It is manifest that nothing but a statutory inhibition, resting on the ground of public policy, can justify a court in holding that they did not have the right to settle all or any of the aforementioned elements by agreement. [1] The proposal of the New Jersey Company to construct its road across and upon the road and right of way of the Iowa Company was a matter of no light concern to the latter company. In addition to the taking of its property, the construction and maintenance of a crossing would impose upon it a perpetual burden. The existence of the crossing naturally would increase the haz-ed the following statute: ards inherent in the operation of its trains. It not only had a right to protect its own property, but it was its duty to exercise due care for the safety of the passengers and property to be transported on its trains, and for the safety of its servants while operating its trains. Evansville, etc., Traction Co. v. Evansville Belt R. Co. 44 Ind. App. 155; Baltimore R. Co. v. Cincinnati, etc., R. Co., 52 Ind. App. 639. In view of these considerations it is manifest that it would be entitled to adequate compensation. [4] In the year 1873 the Legislature enact [2] The New Jersey Company had no absolute right to cross the Iowa Company's right of way. Its inchoate right so to do could have been perfected by complying with certain requirements. The first step in the process was to institute negotiations with a view to an adjustment of compensation and other details by agreement. Had it failed in that, then the second and final step would have been to institute a condemnation proceeding; and in that event the compensation (in the nature of damages) must have been ascertained and paid in advance. State Constitution, art. 1, § 1; (section 928 et seq., Burns' Ann. St. 1914); Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440. [3] When the representatives of the railroad companies met for the purpose of negotiating an agreement, naturally a number of elements must have arisen for their consideration. None of those elements was of greater importance to the companies than the crossing proper. Who shall construct the initial crossing? What type of crossing shall be constructed? Who shall have authority to renew from time to time the tracks at the place of intersection? Who shall pay the cost of keeping the crossing constantly in a serviceable and safe condition? That these elements were legitimate subjects for discussion and settlement, we apprehend no rational person will deny. Indeed it is inconceivable that there could be a 146 N.E.-8 "Section 1. Be it enacted by the General Assembly of the state of Indiana, that where it becomes necessary for the track of one railroad company to cross the track of another railroad company, the company owning the road last constructed at such crossing, shall, unless otherwise agreed to between such companies, be at the exclusive expense of constructing such crossing in a manner to be convenient and safe for both companies. "Sec. 2. Whenever such railroad crossing is constructed in the manner provided for in the first section of this act, it shall be the duty of each company, respectively, to maintain and keep in repair its own track, so as at all times to provide a ready, safe and convenient crossing for all locomotives or trains passing on either road at such point. "Sec. 3. Whereas, there is no law now in force upon the subject of keeping railroad crossings in repair, and providing for the expense thereof, an emergency is declared to exist for the immediate taking effect of this act, it shall therefore be in force from and after its passage." Acts 1873, p. 186 (sections 5222, 5223, Burns' Ann. St. 1914). On the foregoing statute the appellant rests its contention. Does the statute constitute a firm foundation? When making a critical examination of the act for the purpose of discovering the legislative intent the first thing to observe is its scope-what is included and what is excluded. It clearly appears that the applicability of the Act is not limited to any particular kind of crossing, in respect to physical structure. All crossings, regardless of the type of construction, are within its purview. It is immaterial that a proposed crossing is to be an overhead, a subway, or a grade crossing; for all alike are subject to the provisions of the Act. Indiana, etc., R. Co. v. Barnhart, 115 Ind. 399, 16 N. E. 121. The one and only limitation is in another direction. It is apparent that the effect of the words "unless otherwise agreed to between such companies" is to leave the companies free to determine by, Legislature nor the Congress had undertaken agreement which company shall construct to regulate or control the financial affairs of the initial crossing, and which company railroad companies; and it is not within the shall pay the cost thereof, or whether the cost range of probability that the Legislature was shall be divided between them in any propor- concerned in that phase of the subject. The tion satisfactory to themselves. That prop- reference to the expense of maintenance is osition is too plain for argument. How, if merely incidental to the main purpose. at all, do the words "unless otherwise agreed to between such companies" affect section 2 of the Act? Does the limitation expressed by those words hold good as to section 2? In view of the contention presented by the appellant we must look beneath the surface to find the true meaning and purpose of this peculiar piece of legislation. As we have seen, the law not only leaves the railroad companies free to agree on the element of compensation, but it imperatively requires, as a condition precedent to the right to maintain a condemnation proceeding, that an effort to agree thereon must have been made. The law leaves them free to agree on the kind of crossing to be constructed, whether it shall be on a separate or at a common grade. Section 5227 et seq., Burns' Ann. St. 1914. By the plain words of the Act of 1873 they are free to determine by agreement who shall pay the cost of constructing the initial crossing. Why, then, should they be prohibited from making an agreement concerning the cost of maintaining the crossing? Obviously the real purpose of the Act was not to impose on each company the naked duty to maintain its own track. To so hold would be to charge the Legislature with stupidity. Of course, that would be the duty of every railroad company in the absence of legislation. Self-interest should be sufficient to insure the performance of that duty; for no road is likely to be profitable unless a continuous track is maintained between the final terminals. But how (in respect to physical conditions) should a railroad be constructed and maintained where it crosses another road? It is conceivable that the company whose duty it is to construct the initial crossing, prompted only by its own selfish interests, might propose to construct a crossing which would be suitable to its own purposes, but quite unsuitable to the purposes of the other company. It is also conceivable that after a crossing, consonant with the needs of both companies, has been constructed, either company, through the selfishness, indifference or thoughtlessness of its officers, may maintain its own track in a condition fit for its own It is not unreasonable to say that the state purposes, but which nevertheless constitutes has a substantial interest in the physical a menace or an obstruction or a hindrance character of railroad crossings; for the to the other company. In other words, alsafety of life and property is directly in- though its own track is in perfect condition volved in that feature. The Legislature has for its own purposes, nevertheless, it may be recognized that interest by providing a meth- in a condition which renders the place of od whereby the physical character of a cross-crossing unready, unsafe, and inconvenient ing shall be determined in cases where the companies are unable to agree. Section 5227 et seq., supra. But the important fact remains that the Legislature has not seen fit to prohibit railroad companies from fixing by their agreement the physical character of any crossing, whether it shall be at a common grade or at separate grades. Can it be that the Legislature was concerned only with the effect that agreements concerning the expense of maintenance might have on the financial affairs of railroad companies? If the state have any interest in that feature, it is remote and shadowy. It is inconceivable that the Legislature was impressed with the idea that the state had such an interest in the financial feature as would justify it in denying the natural right to contract. Whether the cost of maintaining a crossing should be paid wholly by one company or should be divided (equally or unequally) between the two, is a question which directly concerns the companies; but whatever interest, if any, the state may have in that question is indirect and apparently inconsequential. It would be unreasonable to say that the legislative purpose was directed to that purely financial feature. for the passage of the locomotives and trains of the other company. Here we come to the very heart of the Act. The essential purpose of section 1 is evidenced by the declaration that the initial crossing shall be constructed "in a manner to be convenient and safe for both companies." The essential purpose of section 2 is evidenced by the declaration "that it shall be the duty of each company, respectively, to maintain and keep in repair its own track, so as at all times to provide a ready, safe, and convenient crossing for all locomotives and trains passing on either road at such point." The true purpose of the Act is to require that each company, at all times and in all respects, shall exercise its own rights and care for its own interests in the crossing with due and proper regard for the rights and interests of the other company. Indiana, etc., R. Co. v. Barnhart, 115 Ind. 399, 16 N. E. 121. That duty is not limited by the words "unless otherwise agreed to between such companies." The sole function of those words is to express the legislative recognition of the right of the interested companies to agree otherwise concerning the expense and concerning who shall do the actual work. |