[218 U.S. 336, 337] Messrs. John B. Elam, James W. Fesler, Harvey J. Elam, and Reuben Conner for plaintiff in error.
[218 U.S. 336, 340] Messrs. Richard N. Elliott, Charles F. Jones, Hyatt L. Frost, and David W. McKee for defendant in error.
Mr. Justice Harlan delivered the opinion of the court:
The common council of Connersville, Indiana, adopted a resolution declaring that a railway embankment maintained by the Cincinnati, Indianapolis, & Western Railway Company, the plaintiff in error, across Grand avenue, in that city, obstructed passage between the north and south ends of the avenue; also, that such avenue should, as a matter of public necessity, be opened as a public street through said railroad embankment. [218 U.S. 336, 341] The question of the expediency, advisability, and public utility of opening up the avenue through the embankment was thereupon referred to the city commissioners, and to the council's committee on streets, alleys, and bridges, for action. Upon consideration of the matter at a time of which public notice was duly given, and after an examination of the ground sought to be appropriated, the commissioners reported that the opening of the avenue through the railroad embankment would be of public utility. The report stated that the real estate to be appropriated by the opening of the avenue was so much of the railroad embankment as extended the entire width of the avenue, as then used and opened, immediately north and south of such embankment. The tract sought to be appropriated was 66 feet square and was occupied by the embankment. The commissioners found and reported that no real estate would be damaged by the proposed opening other than that sought to be appropriated, and that the real estate abutting on both sides of the avenue would be benefited by the proposed opening of the street. There was a hearing-after due notice to all parties concerned, including the railroad company-of the question of injuries and benefits to the property to be appropriated, and of the benefits and damages to all real estate resulting from the opening of the avenue. The result of the hearing was a report by the city commissioners in favor of the opening, and the value of the real estate sought to be appropriated was estimated at $150.
The city council adopted the report of the commissioners, and appropriated for the purpose of opening Grand avenue the real estate described in the report as necessary to such opening,-the property here in question being a part of that to be appropriated. The council also directed that a certified copy of so much of the report as assessed benefits and damages be delivered to the [218 U.S. 336, 342] treasurer of the city, and copied in full on the records of the council, with the minute of the adoption of the resolution describing the real estate appropriated.
There were various exceptions by the railway company and by the city, followed by a trial before a jury, which found for the railway company and assessed its damages at $800. A motion by the company for a new trial having been overruled, and a judgment entered for the defendant company, in the state court of original jurisdiction, the case was carried to the supreme court of Indiana (which affirmed the judgment), and it is now here for a re-examination as to certain Federal questions raised by the railway company.
It was not disputed at the trial that the improvement of Grand avenue, as ordered by the city of Connersville, made it necessary to construct a bridge over and across the avenue as reconstructed.
The trial court gave the following, among other, instructions to the jury: 'It being the duty of the defendant railroad company to construct and keep in safe and good condition all highway crossings, the defendant in this action would not be entitled to any damages for constructing the necessary erossing nor abutments and bridge for supporting its railroad over and across said street when constructed.'
It refused to give this instruction asked by the railway company: 'If the appropriation of the defendant's property under the proceedings set forth in this case will necessarily and proximately cause expense to the defendant in constructing a bridge to carry its railroad over the proposed street, in order that its railroad tracks may have support and its railroad may be operated as such, and as an entire line, and such construction of said bridge will be required for no other purpose, then, in determining the defendant's damages, you should consider the expense of constructing such bridge.' [218 U.S. 336, 343] The railway company duly excepted to this action of the trial court, but the supreme court of Indiana held that there was no error.
There are twenty assignments of error, accompanied by an extended brief of argument. In addition, a great many authorities are cited by the learned counsel for the railway company. If we should deal with each assignment and argument separately, and enter upon a critical examination of the authorities cited, this opinion would be of undue length. We think the case is within a very narrow compass. This seems to be the view of learned counsel of the plaintiff in error, for, after a general reference to various questions raised at the trial, counsel say that 'the case, upon final analysis, reduces itself to the question whether the police power [ of the state] can be so applied as to require the railroad company to build the bridge without compensation.'
If the railway company was not entitled to compensation on account of the construction of this bridge,-whether regard be had to the 5th or the 14th Amendments of the Constitution, or to the general reserved police power of the state,-then it is clear that the jury were not misdirected as to what should be considered by them in estimating the damages which, under the law, the railway company was entitled to recover.
The question as to the right of the railway company to be reimbursed for any moneys necessarily expended in constructing the bridge in question is, we think, concluded by former decisions of this court; particularly by Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 562, 582 , 584 S., 591, 50 L. ed. 601, 605, 606, 608, 26 Sup. Ct. Rep. 341, 4 A. & E. Ann. Cas. 1175; New Orleans Gaslight Co. v. Drainage Comrs. 197 U.S. 453 , 49 L. ed. 831, 25 Sup. Ct. Rep. 471; New York & N. E. R. Co. v. Bristol, 151 U.S. 556, 571 , 38 S. L. ed. 269, 274, 14 Sup. Ct. Rep. 437; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 254 , 41 S. L. ed. 979, 990, 17 Sup. Ct. Rep. 581; Northern Transp. Co. v. Chicago, 99 U.S. 635 , 25 L. ed. 336. See also Union Bridge Co. v. United States, 204 U.S. 364 , 51 L. ed. 523, 27 Sup. Ct. Rep. 367. The railway company accepted its franchise from the state, [218 U.S. 336, 344] subject necessarily to the condition that it would conform at its own expense to any regulations, not arbitrary in their character, as to the opening or use of streets, which had for their object the safety of the public, or the promotion of the public convenience, and which might, from time to time, be established by the municipality, when proceeding under legislative authority, within whose limits the company's business was conducted. This court has said that 'the power, whether called police, governmental, or legislative, exists in each state, by appropriate enactments not forbidden by its own Constitution or by the Constitution of the United States, to regulate the relative rights and duties of all persons and corporations within its jurisdiction, and therefore to provide for the public convenience and the public good.' Lake Shore & M. S. R. Co. v. Ohio, 173 U.S. 285, 297 , 43 S. L. ed. 702, 706, 19 Sup. Ct. Rep. 465, 470.
Without further discussion, and without referring to other matters mentioned by counsel, we adjudge, upon the authority of former cases, that there was no error in holding that the city could not be compelled to reimburse the railway company for the cost of the bridge in question.