New Albany & Salem Railroad v. O'Daily

13 Ind. 353

Opinion

Perkins, J.

This was a proceeding for the assessment of damages occasioned by the laying of a track of the New Albany and Salem, Railroad. The track was laid in a public street in the city of Lafayette, in front of O ’Daily’s property. The proceedings for the assessment of damages were under the act of 1852 (2 R. S. p. 193, § 710), and were instituted by O’Daily.

The fee simple in the streets of towns and cities in Indiana, would seem, during the existence of the corporation, to be-in the public. At all events, this Court has decided that taking a street is not talcing an “interest in the land” of the adjoining proprietor. Protzman v. The Indianapolis and Cincinnati Railroad Co., 9 Ind. R. 467.

Yet it is only when such interest is taken, that the act of 1852 authorizes this proceeding for the assessment of damages. Hence, this suit could not be sustained under it. See The Lafayette, &c., Plankroad Co. v. The New Albany, &c., Railroad Co., at this term

(1).

Per Curiam.

The judgment is reversed with costs.

Cause remanded, &c.

Ante, 90.