New Albany & Salem Railroad v. O'Daily

12 Ind. 551

Opinion

Perkins, J.

This was a complaint for an injunction and a writ of assessment of damages against The New Albany cmd Salem Railroad Company, because said company was proceeding to lay a track of their road along a certain street in the city of Lafayette, in front of the lot of -A-11 injunction was granted, &c. '

II. W. Chase, I. A. Wilstach, S. C. Willson, and J. E. McDonald, for the appellants.

A railroad in a city is not, necessarily, a nuisance, and the injunction cannot be sustained on that ground. Ang. on Highw., p. 217. See Wood v. Mears, at this term

(1). And so far as the suit was to obtain compensation for damages by a statutory wilt of assessment, it must fail, because the appropriation of a public street to the use of a railroad, is not a taking of the private property of the owners of adjoining lots, within the meaning of the statute giving that remedy. The action must be one for damages for an injury as at common law, if one lies at all. The Indiana, &c., Co. v. Boden, 10 Ind. R. 96.—Protzman v. The Indianapolis, &c., Railroad Co., 9 id. 467.

Per Cwriam.

The judgment is reversed with costs. Cause remanded to be dismissed.

Ante, 515.