The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1911-07-08

WHO ucSlI Gu u OutdIu IL LII oiuCI "
build and operate the road. Thus it ap-
pears that the franchise was not gran
ted to the defendant nor did the de-
PENDANT build the road, as is shown in
the complaint However, after the road
was constructed the defendant became
the owner of the franchise, and the
road, and now is. and was at the time
this suit was brought, operating and
controlling il. In this connection it is
but fair to state that the members of
the present Board of Commissioners
were not in office at the time the fran
chise was granted, and are in no wise
responsible for it's terms and condi-
tons.
When the Board resolved to make
the improvement in question they had
knowledge that the tracks of the de-
PENDANTS railway lay within the limits
of the proposed improvement and had
for eleven years without objection.
They knew that the tracks were laid
with their knowledge and consent and
by virtue of the franchise which they
had deliberately granted. They knew
'iot thN COMPANY III i"yihS 'i'S'i
tracks and in maintaining and using
them for eleven years were not wrong
doors; that they were neither trespass-
ers nor usurpers. They knew the COM
pany's occupation was legal, and that
a statute Of the state guaranteed them
the same protection that street rail-
ways received when occupying the
streets of cities. They likewise knew
that when the grade of that portion of
the highway in question was widened,
as proposed. that the railway tracks
would be less obstruction to public
travel than they were before the grade
| was so widened
That the defendant has substantial
| vested rights to maintain and operate
| their line Of railway within the limits
of the National Road that cannot be
unreasonably crippled or destroyed by
| the Board of Commissioners, can not
be doubted.
1t is the opinion of the Court that
| the Board of Commissioners acting as
board of directors for the National
Road and as such having the exclu-
sive control and management of such
road have the right to repair and i'm
prove it when in their judgment condi-
tons require it. The Court is likewise
of the opinion that under the circum-
stances they have the right to make
the improvement proposed When the
franchise was granted and accepted
to build and operate the interurban
i 80 Ia 4 A.
tional Road, the grantees were bound
to take notice of the reserved rights of
the public authorities to repair and
improve the road as public highway,
and the rights they acquired were sub
ordinate thereto. The franchise grant
ed authorized the company that built
the road to lay and maintain their
tracks and operate their road on a
designated line for the purpose of
conferred upon them no right or pow
er to manage and control the highway.
That the law vested exclusively in the
board of directors without any author.
ity on their part to surrender or dele
gate it to others.
When the Board of Directors resol-
we'd to improve the highway as propos-
ed. they were bound to take notice of
the rights of the defendant in any con-
tract that they might make for doing
the work. The presence of the dailway
track along and over the highway
where the improvement was to be
made was notice to contractors of the
defendants rights in the premises and
made it necessary for them to protect
themselves in making their contract
While the improvement is being made
it is the duty of the defendant where
reasonably required to elevate, shift
and so arrange their track so as not to
unreasonably obstruct the progress OF
the work and this they must do at
their own expense. When the improve
ment is completed and the grade OF
the road widened as proposed and the
surface changed there will be new con
ditions and new order of things. All
indications of the line where the
tracks are now laid will be obliterated
1t is the judgment of the Court that it
will not be unreasonable for the board
III uiiCStoiS W tSuuilS Tue ueleuudUt
to lay it's tracks upon line of the
improved grade that will be conducive
to public welfare and at the same time
be fair to the company. This line may
be agreed upon by the Board of Com.
missioners and the defendant as pro.
vided in the statute, or failing in this
! then upon line to be reasonably des.
ignated by the Board of Commission.
ers and the county surveyor as provi.
ded in the franchise. When line has
been agreed upon or reasonably res.
ignated as above mentioned, them it
will be the duty of the company to To-
cate its tracks upon such line. and SO
lay or ballast them that they shall
conform to the general grade of the
highway and so that the top of the
rails shall be flush with the surface OF
the roadway and this the company
must do at its own expense If more
expedient the tracks might be laid
and ballasted while the roadway is
being graded. The Court is of the op.
inion that it would be unreasonable
under the circumstances to entirely
exclude the defendants tracks from
the improved and widened grade to an
unimproved part of the highway and