Terre Haute & Southeastern Railroad v. Rodel

Elliott, J.

The question in this case is: Can the owner of a lot abutting upon a street maintain an action of ejectment against a railway company which has laid its track thereon without having paid or tendered compensation?

It is settled that the owner of a lot abutting upon a public street owns to the center, and that his title is a fee burdened only by the easement of the public. It is also the rule in this State that the lot owner may maintain an action against the railroad company for damages. Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Terre Haute, etc., R. R. Co. v. Scott, 74 Ind. 29, auth. p. 38. Counsel for appellant contend that these cases do not decide that an action of ejectment may be maintained. The last of the cases declares that the lot owner may vindicate his rights by the usual legal remedies, and in the first the judge who delivered the opinion declares that ejectment will lie. But, without stopping to consider whether these cases do decide this'question, we pass to one which does directly decide it, Sharpe v. St. Louis, etc., R. W. Co., 49 Ind. 296. In that case the action was for possession, and it was held that it would lie. It is true that there is no discussion of the question, and that the opinion is rested entirely upon Cox v. Louisville, etc., R. R. Co. We adhere to the conclusion,'there reached, for we regard it as sound in principle and supported by authority. The right to possession is in the owner of the fee, for neither the public nor the municipal corporation can maintain an action for possession. Their rights may be vindicated but not in such an action. Certainly, the right to maintain the proper possessory action must reside somewhere, and, as it does not reside in the public or the municipality, it must be in the owner of the fee. It is true that in the case of City of Cincinnati v. White, 6 Peters, 431, a different doctrine is *130 stated in the opinion, but as shown by Mr. Angell, the question was not involved in that case. The author named, in speaking of the case under immediate mention, says: “ It is certainly manifest that the remarks were made upon a very imperfect-review of the authorities, if not upon-some misapprehension of principle. In regard to the compatibility of the public enjoyment with individual possession, the reasoning of Swift, J., in Peck v. Smith [1 Conn. 103], would seem to be perfectly conclusive. * * * It supposes that different rights in the use-of the same thing may co-exist in different persons; and nothing is more common than for one to have an easement in the land of another, who has an estate in fee and is in actual possession. A private right of way is such an easement. It is compatible with the right of the owner of the fee to depasture and mow it; take the trees and anything growing on it; and hold it in possession for these purposes. If disseized by the grantee of the easement, he can recover possession in ejectment, there being no inconsistency in the recovery subject to the private right of way. The principle is precisely the same in regard to the right of the pubic in the' soil of a highway ; its right is but an easement, and, subject to that, it no-more conflicts with the right of the public in a highway, than with that of an individual in a private way, for the owner of' the fee to recover possession.” Angell Highw., section 320.. The doctrine that the owner of the fee may maintain ejectment for the land covered by a public highway is as old at least as. Goodtitle v. Alker, 1 Burr. 133. Lord Mansfield there said: “ I see no ground why the owner of the soil may not bring ejectment, as well as trespass. It would be very inconvenient, to say that in this case he should have no specific legal remedy; and that his only relief should be repeated actions of damages, for trees and mines, salt springs, and other profits underground. ’Tis true indeed that he must recover the land, subject to the way; but surely he ought to have a specific remedy, to recover the land itself; notwithstanding its being subject to an easement upon it.” There are many cases en *131 forcing this doctrine, among them Cooper v. Smith, 9 Serg. & R. 26; Alden v. Murdock, 13 Mass. 256; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Carpenter v. Oswego, etc., R. R. Co., 25 N. Y. 256; Jersey City v. Fitzpatrick, 30 N. J. Eq. 97; Perry v. New Orleans, etc., R. R. Co., 55 Ala. 413 (28 Am. R. 740).

Judgment affirmed.