Ind.) CHICAGO & C. T. RY. CO. v. WHITING, H. & E. C. ST. RY. CO. highways hereinafter mentioned; that it has been and now is operating all that portion of its said railway in the city of Hammond lying south of the Michigan Central Railroad tracks in said city, being about two miles in length, and its entire line is completed from the Michigan Central Railroad tracks in said city of Hammond to and through the said city of East Chicago, with the exception of the railroad crossings before mentioned; that the appellant is a corporation operating, by steam power, a line of railway from the city of Chicago, Ill., into said county of Lake, in the state of Indiana, passing through said city of Hammond, the said city of East Chicago, and the said village of Whiting; that the railroad tracks of said appellant cross the said Hohman street, Gostlin street, and Oak street, in said city of Hammond, and the said Forsyth avenue, in the city of East Chicago, as nearly as may be, at right angles, and the said Indiana Boulevard at a point near and south of the said village of Whiting, in a direction nearly, if not quite, at right angles; that the tracks of said street railway are laid upon, along, and lengthwise with the said streets and public highways aforesaid, and when completed, by the construction of connections or crossings over the tracks of said appellant, it will cross the said appellant's railway tracks at all points where they cross the said streets and public highways; that appellant had refused to permit the said street-railway company to connect its said railway tracks by constructing proper railroad crossings and connections where the tracks of appellee cross the tracks of the appellant as aforesaid, unless appellee will enter into a contract with appellant agreeing to certain requirements demanded by appellant, covering the expense of maintaining gates and flagmen at said points, and the future construction by appellee, at its own expense, of certain devices, commonly known as "interlocking switches," which may in future be demanded, and will, unless restrained, prevent, by force, the construction of said crossings, and has threatened to and will tear up and remove, by force, any crossings or connections at said points across its said railway tracks, which appellee may succeed in constructing thereat; that, by force, appellant has made it impossible for appellee to operate its said street railway between the said city of Hammond and the said city of East Chicago, and appellee cannot so operate its said street railway to connect any of said cities or villages aforesaid until said tracks are connected and crossings laid over the tracks of appellant at the points aforesaid; that appellee has a large force of men ready to construct and lay the said crossings, and is now ready and waiting to operate its said road, except the laying of the said tracks across the appellant's tracks; that in the connection of its said railway tracks, and the laying of said crossings afore said, appelleé does not propose, nor has it 605 proposed, desired, or intended, to in any manner attach or fasten the same or lay the same upon or against any of the railway traeks of said appellant without its consent, but it desires to, and will, if protected by a restraining order, lay its said tracks up to the rails of said appellant, and between the same, at right angles therewith, forming what is known as a "jump crossing;" that such crossings are in common use by street-railway companies; that it will in no manner interfere with, retard, or endanger the running of trains by said appellant, nor will they in any manner interfere with or restrict its use of said property, or lessen the value thereof. Prayer that the appellant be restrained from doing the acts complained of until the further order of the court, and, on the final hearing, that appellant be perpetually enjoined. It is the settled law of this state that the public takes only an easement in the streets of a city or town, and if a steamrailroad company lays its tracks upon such streets the abutting owner of the fee, whose title extends to the center of the street, is entitled to recover damages. Railroad Co. v. Scott, 74 Ind. 29; Eichels v. Railroad Co., 78 Ind. 261; Cox v. Railroad Co., 48 Ind. 178; Sharpe v. Railroad Co., 49 Ind. 296; Ross v. Faust, 54 Ind. 471; Nelson v. Fleming, 56 Ind. 310; Railroad Co. v. Kernodle, 54 Ind. 314; Roelker v. Railroad Co., 50 Ind. 127. The basis upon which this rule rests is that the appropriation of the soil over which a street passes, for the construction, operation, and maintenance of a steam railway, is a new or additional appropriation to that of the easement granted to the public, which entitles the abutting owner to such damages as he may sustain thereby. Cox v. Railroad Co., supra. It follows from this that the steam railway which obtains a right of way over a street, and constructs its railway thereon, obtains something more than an easement. It obtains property rights in such right of way, subject only to the right of the public to travel over the street. And the question here presented, by challenging the sufficiency of the complaint, is whether the same rule applies to street railways; that is, whether the appropriation of a street to the use of a street railway is a new and an additional appropriation,-a new and additional burden to that of the easement of the public generally. It is conceded by the appellant that a street railroad is not an additional burden upon the fee in the street, although appellant claims that strong reasons exist against the doctrine. It is conceded, however, that the courts have quite generally held that such use of a street is not an additional burden; that it is simply ar extended use of the right which the public acquired in the first instance. This concession, we think, admits that the appellant has no cause to complain of the action of the circuit court. The writer of this opinion seriously doubts the soundness of the rule thus conceded by the appellant. It is true that street-railway corporations have a right to the use of the public streets cf a city or town, for the purposes of ordinary travel over them, in the same way that any other portion of the general public may enjoy that right. But, when they obtain a right of way over such streets to lay down their tracks on such streets, they obtain and secure a right and an interest in the street that the general public does not and cannot have and enjoy. They obtain, to all intents and purposes, as much a property right in their right of way in the street attached to the soil as the steam railway laid on such streets. This is so because such companies are authorized to mortgage their corporate property and franchises to secure the payment of loans of money to the corporation. Such power necessarily carries with it power to sell such property and franchises at sheriff's sale to make the money. 2 Rev. St. 1894, § 5473; Railroad Co. Delamore, 114 U. S. 501, 5 Sup. Ct. 1009. How such a right can constitute nothing more than the easement the public has in the street, it is difficult to understand. If the location and operation of a street railway on a public street is no new or additional burden on the soil, but rests on the easement the public has in the street, then it seems to the writer the company need not obtain any license, permit, or franchise from the municipal authorities to construct its tracks in the public streets of a city. And yet it is the settled law in this and other states that a street railway cannot be laid upon the streets of a town or city without a grant of a license or franchise therefor, either by the municipality or the legislature. Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., 127 Ind. 369, 24 N. E. 1054, and 26 N. E. 893; 23 Am. & Eng. Enc. Law, 946, 947, and authorities there cited. No other part of the public is required to obtain a license or franchise to use or enjoy the easement of the street. The very fact that a franchise is required to authorize and justify a street-railway company to lay down its tracks on a public street seems to the writer a sufficient reason for saying that such was not one of the uses in contemplation when the street was opened and dedicated. Besides, it is settled law that the street-railway company, when once its track is constructed on a street, has rights over that part of the street where its track is located superior to those of the public, who enjoy only the easement in the street. For instance, the public must turn off of the street-railway track when met by the street-railway cars. 23 Am. & Eng. Enc. Law, 990, 991, and authorities there cited. But the overwhelming weight of authority seems to settle the law, both in this state and elsewhere, that a street rallway is not an additional burden to that of the general easement in the street, and that the owners of the fee are not entitled to damages on account of the construction thereof on a public street. Eichels v. Railroad Co., supra; Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., supra; Elliott v. Railroad Co., 32 Conn. 579; Hinchman v. Railroad Co., 17 N. J. Eq. 75; Jersey City & B. R. Co. v. Jersey City & H. Horse R. Co., 20 N. J. Eq. 61; Cincinnati & S. G. A. St. Ry. Co. v. Village of Cumminsville, 14 Ohio St. 523; Hobart v. Railroad Co., 27 Wis. 194; Attorney General v. Metropolitan R. R., 125 Mass. 515; Brown v. Duplessis, 14 La. Ann. 842; Savannah & T. R. Co. v. Mayor, etc., 45 Ga. 602; Peddicord v. Railroad Co., 34 Md. 463; 23 Am. & Eng. Enc. Law, 954-957, and authorities there cited. These authorities, and others that might be cited, so firmly settle the rule that it could not now be departed from without serious disturbance of vested property rights. The use of the street by the appellant is subject to the easement in the public, and the burden of keeping the street crossing over its tracks in such a condition as not to impede or obstruct the public easement and use of the street by the public generally is a burden already resting on the appellant. That burden is in no way to be added to or increased by the crossings appellee proposes to construct. So long, therefore, as it is the settled law of this state that a street railway is not an additional burden to that of the easement the general public has in the street, and that the street-railway company's right to use the street is founded on that easement, that long it must be held that the right of such street railway to cross over the tracks of a steam railway laid on such street is subject to no conditions other than those to which the general public is subject in traveling over such streets. When the steam-railway company obtains its right of way over and along a public street, it does so subject to the right of the general public to use that street, and the street crossings over its tracks; and it is generally incumbent on such steam-railway companies to make such crossings as passable for the general public as they were before the construction of their tracks thereon. The duty, therefore, is incumbent on the steam-railway company only to make the crossing as passable as it was before the construction of its tracks thereon, for the public generally, or as nearly so as practicable. That does not impose the burden of providing cross rails and tracks for the street railway to make the crossing. But the street railway is proposing to furnish all that itself, and to be to all the expense of making the crossing and connection. Appellant contends that this will be a burden and a hindrance to the free and unobstructed use of the appellant's steam railway, which it is claimed is a taking of private property without just compensation, in violation of the constitution. county. The statute provides that the county board may grant the right or privilege to a street-railway company to use any public highway of the county for its street railway. 2 Rev. St. 1894, §§ 5465-5468 (Rev. St. 1881, §§ 4155-4158). The right to pass over the highway by a steam railway is subject to the easement of the public, a part of which is owned and enjoyed by the street railway. We are therefore of opinion that the complaint stated facts sufficient to constitute a cause of action, and that the circuit court did not err in granting the temporary injunction. Therefore the interlocutory order granting the same is affirmed. ADAMS v. SHEWALTER. 1. A complaint to dissolve a partnership, which alleges that defendant had collected large sums due the partnership, and had refused to account for them; that the firm was indebted to plaintiff for advancements, which should have been paid before defendant was entitled to any share of the proceeds of the firm business; that the firm was indebted to other parties; and that defendant was insolvent,-states a cause of action. 2. The fact that the prayer of such a complaint asked damages in a certain amount, as well as an accounting and a receiver, does not make the action one at law. True, it is a hindrance and an obstruction | Indiana Boulevard, a public highway of the to the use of appellant's steam railway. But having obtained its right of way subject to the burden of the easement in the public generally, and the street railway being entitled to the use of that easement, all the rights appellant obtained in the street, for its steam railway, were subject to the right of the street railway to use the street. In short, the appellant's rights, obtained in the use of the streets for its steam railway, were subject to the burden of the appellee's use thereof, in the ordinary and proper manner, for its street railway. The complaint shows that appellee was only proposing to use the streets at the crossings in the ordinary and in a proper manner for the construction of street-railway crossings, and that it had been hindered and obstructed therein by the appellant, by the use of force. It would therefore not be a taking of private property without just compensation, because it does not propose to take from appellant anything it ever owned. It never owned its right of way over and across the streets named, free from the burden of the public easement, a part of which belongs to the appellee, the street railway. The conclusion we reach is not in conflict with the case of Indianapolis, etc., G. R. Co. v. Belt Ry. Co., 110 Ind. 5, 10 N. E. 923, cited and relied on by the appellant. In that case the gravel-road company was a private corporation, and the owner of the gravel road before the construction of the Belt Railway. The property of the gravel-road company was not acquired subject to any easement in the public, or any one else, to construct a railroad across its gravel road. It was there held, very properly, that while the statute confers upon railroad companies the power to cross highways, and to do so without the payment of compensation, so far as the public is concerned, yet that a gravel road, owning its road, owns it as any body else owns his property, and that private property cannot be taken by any one without just compensation, nor, except in case of the state, without such compensation first assessed and tendered. Const. Ind. art. 1, § 21. And it was there further held that the building of a railroad across such gravel road would be a taking of private property, within the meaning of the section of the constitution referred to, on the ground that it was an incumbrance on the property. Manifestly, that case has no application here, because the gravel-road company acquired its property in the gravel road, not subject to, but free from, any easement or incumbrance, of any kind whatever. Not so with the appellant, the steam-railway company, in the case now before us. As we have already seen, it acquired its rights subject to the, easement and incumbrance against which it admits, by its assignment of error, it has made forcible resistance. The same principle applies to the crossing over appellant's tracks, where they cross 3. Though a partnership agreement provides that, before the firm can be dissolved, notice must be given by the partner desiring dissolution, if an insolvent partner misappropriates firm money, and refuses to account therefor, the other partner may bring suit to dissolve the firm without giving notice. 4. The action of the trial court in striking out special allegations in an answer will not be disturbed where all the facts pleaded therein could be proven under the general denial pleaded. Appeal from circuit court, Randolph county; L. J. Monks, Judge. Action by James A. Shewalter against Silas H. Adams for the dissolution of a partner. ship. Judgment was rendered in favor of plaintiff, and defendant appeals. Affirmed. D. T. Taylor and Headington & La Follette, for appellant. La Follette & Adair and Marsh & Thompson, for appellee. DAILEY, J. This appeal was taken from a judgment rendered by the Randolph circuit court in a case originally begun by the appellee against the appellant in the Jay circuit court, asking for a dissolution of copartnership and an accounting. The complaint was in one paragraph, with a copy of the agreement of copartnership filed as an exhibit. There was a prayer for the appointment of a receiver, and later on an additional application for a receiver was filed. The defendant demurred to the complaint, and the demurrer was overruled, to which he excepted. Issues were then formed, and the cause was submitted to the court for trial on the 2d day of February, 1891; and on the following 11th day of December It made its finding for the plaintiff, and rendered a judgment against the defendant for $9,116.56. The first specification of error challenges the sufficiency of the complaint upon the grounds that the complaint does not show a compliance by the plaintiff with all the conditions of the contract on his part; that there is no averment in the complaint that the appellee had served upon the appellant a written notice 30 days before the last six months of their copartnership, as provided in the contract; that there is no averment in the complaint as to whether the business of the firm was carried on at a profit or a loss, nor as to the amount of money invested in the partnership business by the appellee; and that there is no allegation that the partnership debts were paid. It appears from the complaint: That the appellant and appellee entered into a written copartnership on the 14th of August, 1888, for the purpose of buying timber and manufacturing and selling staves and heading at Portland, Ind. That by virtue of said contract they engaged in business together, and continued therein since said time until the filing of the complaint, during which they manufactured and sold a large amount of material. That by the terms of the contract the plaintiff was to and did furnish all the money necessary to carry on said business; was to pay all bills and all debts owing by said partnership, and to be repaid for all sums so paid out from the receipts of the concern. That said Adams was to have the one-half part of the profits of the business, to be paid him on settlements at such times and on such demand as was provided for in the contract. That all the advancements of money necessary to conduct the business, made by the plaintiff, were to be first repaid, before the division and repayment of any profits. That the defendant had, however, drawn on his interest therein, during the time the affairs had been conducted, to the amount of $1,500. That in December, 1889, the firm had outstanding bills due them of about $10,000, all of which could have been collected by simply drawing on the debtors. That said partnership is about to be dissolved and closed out, and the defendant is wholly insolvent. That on or about December 1, 1889, said defendant, secretly and without plaintiff's knowledge, went to Chicago, and secured of one Cramer Package Manufacturing Company a settlement and payment, in the sum of $4,520, of the account of said firm, and refused and neglected to enter the payment on the books thereof, and concealed from the plaintiff the fact that he had collected the same. That the defendant on the 4th day of December, 1889, wrote a letter to his partner, stating that he was desirous of going to Minster, Ohio, to transact some private business of his own; but he did not go there, and had no business at that place. That said letter was written fraudulently and deceitfully, and for the purpose of concealing from his partner his real design. That instead of going to Ohio he went to various places over the country, where their debtors resided, and collected of them sums of money specified in the complaint, aggre gating in amount $750.20, all of which were owing to said firm. And there is due the plaintiff about $8,000, for money advanced by him to carry on the business, that has not been paid, and to Shewalter Bros., for money paid out by them for said firm, the sum of about $800, and other outstanding accounts, the amount of which is not exactly known to this plaintiff. That said defendant refuses to account for the money so collected, and has refused to pay out of said money any debts of said firm, although orders and checks have been presented for payment, and declines to use said money for the benefit of the firm, or to pay any part thereof to this plaintiff. That said firm still owns timber in the yard and at their factory, to be cut, and it is to the interest of the firm to have it cut and sold. That the plaintiff has asked and demanded that a settlement and accounting be had between said parties, but the defendant refuses to pay over the money, or to settle the partnership affairs. That all the acts of said Adams in collecting said money were done with the fraudulent intent and purpose of cheating and defrauding the plaintiff. Wherefore, plaintiff demands judgment for $10,000, and an accounting, a settlement of said partnership, and dissolution of the firm. There is a prayer for the appointment of a receiver to take charge of the assets and close up the business of the partnership, and for all other proper relief. Appellant's entire attack upon the sufficiency of the complaint is predicated upon the theory that, in its general scope and tenor, it is an action at law based on contract for the recovery of money, and not a suit in equity, and that it fails to state a cause of action, for the reasons heretofore stated. It is true that under the Code one partner cannot sue his copartner to recover an indebtedness of the latter to the former, growing out of the partnership transactions, until the affairs of the firm have been closed up, and its debts have been paid. But in courts of chancery a partner could sue his copartner, and obtain an adjustment of his partnership affairs, and thus recover whole interest therein. By the Code we have but one form of action, which embraces all that was formerly comprehended by ac tions at law and suits in equity, and there is a remedy, if the case is such as would formerly have called for the interposition of a court of equity. Briggs v. Dougherty, 48 Ind. 247; Douthit v. Douthit, 133 Ind. 26, 32 N. E. 715. In Barnes v. Jones, 91 Ind. 161 (pages 165, 166), it is laid down “that not only his willful acts of fraud and bad faith, but gross instances of carelessness and waste in the administration of the partnership, as well as the exclusion of the partners from their just share of the management, so as to prevent the business from being conducted on the stipulated terms, are sufficient grounds for the dissolution of the contract by a court of equity. So, also, it seems clear that a habit on the part of one partner of receiving moneys, and not entering receipt in the books, or not leaving the books open to inspection of the other partners, whether such conduct arise from a fraudulent intent or not, is good ground for a dissolution." In Kimble v. Seal, 92 Ind. 276, it was held that when a partner, on demand, refuses to account with his copartner, a suit for dissolution and an accounting may be maintained, and the complaint need not aver either the amount put in or taken out by either party, these being incidental matters to be ascertained by the proof. So in Meredith v. Ewing, 85 Ind. 410, it is said: "One partner may maintain an action to compel an accounting, and to recover such sum as may be found due him upon the final adjustment of the partnership affairs." It is needless to cite authorities in support of the doctrine that the court is vested with the power to appoint a receiver on proper application in this class of cases pendente lite. Applying these tests to the complaint under consideration, it was abundantly good for a dissolution and an accounting, and the demurrer was properly overruled. * It is contended that because the agreement of the parties provided that dissolution could only be had at the end of six months, and after 30 days' notice had been given, appellee would be remediless until he had complied with its terms. Appellant loses sight of the fact that every partner not only has his rights as given him by contract, but those guarantied by law, and if he is being defrauded he has access to the courts for relief. It would be a strange condition of things if a court of conscience would allow a partner hopelessly insolvent to loot a concern of $7,000 or $8,000 of its contents, and then barricade himself behind his own fraud, and take advantage of the wrong so perpetrated. Men's estates are not despoiled by courts of justice in this way. It is urged that, as the complaint concludes with a demand for $10,000, it is a complaint for a mere demand for money due; but it has been ruled otherwise, and the position is not tenable. Miller v. Rapp, 135 Ind. 614, 34 N. E. 981, and 35 N. E. 693. The contention that the court could not ascertain the amount due cannot be considered here, as the evidence is not in the record. It is urged by appellant that the court erred in sustaining the motion to strike out the second and third paragraphs of answer. In our opinion there was no available error in this ruling, as all pertinent facts pleaded in either v.3SN.E.no.13—39 paragraph could be proven under the first paragraph, which was denial. in general Robinson v. Snyder, 74 Ind. 110; Gheens v. Golden, 90 Ind. 427. The decision of the court below will have to be affirmed. Judgment affirmed, with costs. 'FERRIS v. BERKSHIRE LIFE INS. CO.1 (Supreme Court of Indiana. Oct. 9, 1894.) TAX LIEN-PRIORITIES-RES JUDICATA. 1. A purchaser under a judgment lien sale takes the land subject to a tax lien thereon. 2. Plaintiff and another prosecuted an action to determine the ownership of land to judgment, resulting in defendant's favor, and subsequently applied for and obtained a new trial, as matter of right, under the statute, but which, failing to prosecute, they dismissed. Held, that such judgment is a bar to a subse quent action, involving the same subject-matter. Appeal from circuit court, Marion county; D. W. Comstock, Special Judge. Action by Edwin P. Ferris against the Berkshire Life Insurance Company to quiet. title to real property. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Edwin P. Ferris, in pro. per. O. B. Jameson, for appellee. COFFEY, J. This was an action brought by the appellant against the appellee in the Marion circuit court to quiet title to the real estate described in the complaint in the cause. A trial resulted in a special finding of the facts and conclusions of law thereon, upon which the court rendered judgment for the appellee. The appellant assigns as error that the circuit court erred in its conclusions of law upon the facts found. It appears from the facts found by the court that Browning and Sloan recovered judgment in the Marion county superior court against the Indianapolis Wagon & Agricultural Works on the 19th day of October, 1876, which at that time became a lien on the real estate in controversy. On the 23d day of February, 1886, the property was sold on an execution issued on this judgment, and the appellant claims title under the judgment and sale. It further appears that the taxes on this property were permitted to run delinquent, and, remaining unpaid, it was sold for the nonpayment of such taxes; and that the appellee, at the time of the commencement of this suit, held the lien of the state for such taxes, if it was not in fact the owner of the property. The appellant has never paid, or offered to pay, these delinquent taxes, or in any manner to discharge the lien created thereby. Under this state of facts, we think it clear that the appellant was not entitled to a decree quieting his title to the real estate involved in this suit. Assuming, without by any means deciding, that the appellant now holds the title owned by the Indianapolis Wagon & 1 Rehearing denied. |