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solutely erred in denying the motion for a new trial for the alleged insufficiency of the evidence to support the verdict.
After Dr. Young had as a witness explained the nature of the injury which the plaintiff had received, and the remedy resorted to for his relief, he was, over the objection of the defendant, permitted to say that the effect of the injury would be very deleterious to the plaintiff's nervous as well as to his general system, and that the injury would thereafter have an injurious effect upon his strength and power of physical endurance. It is insisted that there was nothing in any of the averments of the complaint which justified the admission of such evidence, and for that reason its admission was erroneous. As will be seen by a recurrence to the complaint, it concluded with the averment that the plaintiff had “thereby become wholly crippled and maimed, and prevented from actively pursuing his business for life.” Under our decided cases, that averment was quite sufficient to let in the evidence complained of. Ohio & M. Ry. Co. v. Selby, 47 Ind. 471; Carthage Turnpike Co. v. Andrews, 102 Ind. 138; S. C. 1 N. E. Rep. 364; Louisville, N. A. & C. Ry. Co. v. Falvey, 104 Ind. 409; S. C. 3 N. E. Rep. 389, and 4 N. E. Rep. 908.
The judgment is affirmed, with costs.
ZOLLARS, J., having been of counsel in the court below, did not participate in the decision of this cause. (108 Ind. 144) PFAFF, Auditor, etc., and others 0. TERRE HAUTE & I. R. Co.
(Supreme Court of Indiana. November 5, 1886.) TAXATION"RAILROAD TRACK"-WHAT 18-STATE AND LOCAL AUTHORITIES.
Under the revenue laws of Indiana, lands occupied by a railroad company with its main track, side tracks, depot, round-house, coal-sheds, and water-tanks are to be valued and assessed by the state board of equalization as "railroad track," and cannot be assessed by the local authorities. Appeal from Marion superior court. C. 8. Denny, W. A. Ketcham, and I. Klingensmith, for appellant.
Under the statute, “railroad track” applies only to the original right of way or strip of ground on which the main track is laid, together with the personal property thereon, named in section 6362, Rev. St. 1881. The statute uses the word “strip,” and that cannot include depots, round-houses, etc., off of the original right of way. Rev. St. 1881, $8 6361, 6362. These, and all property owned by the railroad company in fee, constitute the “other realty” referred to in the statute, (Rev. St. 1881, SS 6366, 6368,) and are to be taxed by the local authorities. The constitution of Illinois, on which the decision relied on by appellee is based, is very different from our statute. The state board can have no such facilities for valuing property of this kind as the local authorities, and, as is shown in this case, their valuation is grossly inadequate. The answers show that the board did not, in fact, take into consideration such property at all in returning the valuation of railroad track, and that the valuation by the city is fair and just; yet the appellee, in the face of this, comes into a court of equity seeking to enjoin the city from enforcing such valuation. The taxes are equitably owing, and the answers are good under the decision in Board Com’rs v. Graham, 98 Ind. 279.
Harrison, Miller & Elam, for appellec.
The question in this case is whether certain real estate described in the complaint, owned by the appellee, and occupied by it with its tracks,-main and side,—with its freight-houses, round-houses, and other structures through which tracks run, is taxable under the statutes of this state as "railroad track,” or detached property. The statute includes under this head all property used for right of way, and occupied by railroad tracks, together with all improvements thereon. If this property is not to be listed and valued by the
state board of equalization, then it would escape taxation altogether; for there is no law authorizing its listing, valuation, or assessment in any other way. The fact that the railroad company owns the real estate in fee can make no difference. The test as to what is included under “railroad track” is what is essential or reasonably necessary to be used in carrying on its business as a common carrier; and, as throwing light upon this question, is the property in dispute such as the company might have acquired in the exercise of the power of eminent domain? The policy of our legislation has been to treat a railroad as one great property, the value of every part of which is dependent on the value of every other part. The question has been decided in appellee's favor, under a statute similar in all respects to ours, (Chicago & A. R. Co. v. People, 98 Ill. 350:) and our own cases hold that assessments can only be made by the officers, and in the manner, prescribed by law. Stockman v. Robbins, 80 Ind. 195; State v. Howard, Id. 466.
ZOLLARS, J. Appellee owns, and for a number of years has owned, some small tracts of land, and some lots and parts of lots in the city of Indianapolis, aggregating about 12 acres. The purposes for, and the manner in which, those lots are and have been used, are stated in its complaint as follows: “Plaintiff shows that upon the above-described portion of block 94 is situated its freight-house, through which two tracks run, and on each side of which there are tracks belonging to plaintiff, connected with its main line of track situate on Louisena street, in said city of Indianapolis; that upon said part of outlot 135 plaintiff has constructed a round-house for its locomotives, a small shop for repairing locomotives, a coal-shed, a wood-shed, and some water-tanks; that the balance of said outlot 135, together with all the other real estate above described, except a portion of block 94, is occupied by the main track and side tracks of this plaintiff, and is used exclusively for track purposes. It is further alleged in the complaint that in 1880 and 1881 the railroad company made return of its main track, and all of said side tracks upon the said lands and lots, to the state board of equalization, and that that board valued and assessed the same for taxation, consisting of .56 of a mile of main and 8.15 miles of side tracks, including the lands and lots upon which they were situated, and all the improvements thereon, as “railroad track;" that upon the valuation thus made by the state board the respective officers of Marion county, and of the city of Indianapolis, extended all taxes levied by the county and city respectively, and that the taxes so levied have been paid. It is still further alleged that, notwithstanding the assessment as above stated, and the payment of the taxes, the county and city, by their local assessors and officers, in each of said years, made an assessment of the above-described lots and lands, together with the improvements, and levied taxes thereon, claiming that they are not included in the term “railroad track," and that, therefore, they may be assessed and taxed by the county and city authorities as other lands are assessed.
The railroad company having refused to pay the taxes so assessed by the local authorities, the lots and lands were sold by those authorities. This action, against the proper city and county officers, and the purchaser at the tax sale, is to enjoin the execution of a deed to the purchaser, to enjoin any further attempt to collect such taxes, and to quiet its title to the lots and lands.
The question presented by the record is, are the lots and lands so occupied with tracks, side tracks, and buildings to be valued and assessed by the state board of equalization as “railroad track," or may they be valued and assessed by the county and city authorities as other lands are assessed? The answer to this question is dependent upon the construction to be given to our revenue laws. As there is no material difference between the revenue acts of 1872 and 1881, so far as they affect the question under examination, we shall make reference only to the act of 1881, and to the sections as numbered in
Rev. St. 1881. It is very plain that under the revenue acts the state board of equalization alone has authority to value and assess the railroad property denominated “railroad track” and “rolling stock.” Section 6410. The important question here is, what is included in the term “railroad track ?” Does that term include the land described in the complaint, being small tracts of land and lots which are occupied by side tracks, turn-outs, round-house, a small repair-shop, coal and wood sheds, water-tanks, and turn-tables, etc.?
Section 6362 provides that “such right of way, including the superstructures, main track, side or second track, and turn-outs, turn-tables, telegraph poles, wires, instruments, and other appliances, and the stations and improvements of the railroad company, on such right of way, (except machinery, stationary engines, and other fixtures, which shall be considered personal property,) shall be held to be real estate, for the purpose of taxation, and denominated 'railroad track,' and shall be so listed and valued; and shall be described in the assessment thereof as a strip of land extending on each side of such railroad track, and embracing the same, together with all other stations and improvements thereon, commencing at a point where such railroad track crosses a boundary line in entering the county, township, city, or town, tending to the point where such track crosses the boundary line leaving such county, township, city, or town, to the point of termination in the same, as the case may be, containing - acres, more or less, (inserting name of county, township, city, or town, or boundary line of same, and number of acres and length in feet;) and, when advertised or sold for taxes, no other description shall be necessary to convey a good title to the purchaser.”
This section provides that the right of way, with whatever is upon it in the way of improvements, is to be valued and assessed as “railroad track.” If a depot building, round-house, machine-shop, coal or wood shed, or water-tank, is upon the right of way, they become a part of the railroad track, and are to be valued and assessed by the state board of equalization, and cannot be valued and assessed by the county or city authorities as separate and apart from the "railroad track." The more specific inquiry here is, do the lots and lands described in the complaint, and occupied as therein described, constitute a part of the right of way?
The term “right of way” is not limited by any statutory definition, nor by any statutory provision, to a strip of land of any particular and definite width at all points on the line of the railroad. As applied to a railroad company, it means a way over which the company has the right to pass in the operation of its trains. Williams v. Railroad Co., 50 Wis. 76; S.C. 5 N. W. Rep.482. A railroad cannot be operated with anything like success with a single track. It is necessary to have either a double track, or turn-outs and side tracks, in order that trains going in opposite directions may pass. It is just as necessary
at there shall be turn-outs and side tracks for the making up of trains, the changing of engines, the replenishing of them with water and fuel, and the loading and unloading of freights. With many of the more important lines, it is often necessary to have many of such turn-outs and side tracks, in order that the business may be done with dispatch, in obedience to the demands of commerce and traffic. These side tracks, such as are required at commercial centers, and the larger cities and towns, could not be crowded upon a narrow strip of land, such as may be sufficient between stations. In order that the company may have the requisite amount of such side tracks at such points, it is necessary that it shall have a right of way over a sufficient amount of land upon which to lay and operate them. This right of way the company may acquire by condern nation proceedings,
Rev. St. 1881, § 3907. When such right of way is acquired, by whatever means, the land thus acquired became a part of the company's right of way, and thus a part of the "railroad track," as much as that portion occupied by the main track. It seems reasonable, therefore, that the
person, or body of persons, who value and assess the one should value and assess the other. The main track, in connection with such side tracks, make up the one system and property. To destroy one will greatly cripple and reduce the value of the other. The side. tracks, and the land upon which they are located, will have a value measured by the value of the land as land, and the value of the side tracks and improvements thereon; and these altogether will add to the value of the whole line in proportion as they may afford facilities for the transaction of business over that line. The state board of equalization could not well fix a just valuation upon the railroad without a knowledge of such facilities; and hence the statute requires the railroad company to furnish annually sworn statements to the county auditors of the several counties through which the road may run of the amount of the main, and all second, tracks, side tracks, and turn-outs in the county. The amount of each thus reported to the auditors they are required to report to the auditor of state. Section 6407. The statute also requires that the railroad company shall report to the auditor of state the length of the main track, side or second tracks, turn-outs, and the number and quality of buildings or other structures on "railroad track,” showing the proportion in each county and township. Section 6369. Both of these statements thus received the auditor of state is required to lay before the state board of equalization. Section 6371. If that board is not to value and assess the side tracks, thus reported, the reporting of them would be an idle ceremony, except as they may be considered in fixing the value of the main line. : All of the tracks thus reported are to be valued and assessed by that board as “railroad track;" and, for the purpose of arriving at a just valuation, it may examine persons and papers if necessary. The amounts determined and assessed upon these two items of railroad property, denominated “railroad track,” are to be certified by the audi. tor of state to the auditors of the several counties, and they distribute the value so certified to the several townships, cities, and towns in their counties, which are entitled to a proportionate value of such “railroad track," and compute and extend taxes against such values. Section 6410.
Section 6363 more explicitly declares how the values so assessed shall be apportioned, by providing that the value of the “railroad track”.shall be listed and taxed in the several counties, townships, cities, and towns in the proportion that the length of the main track in such county, township, city, or town bears to the whole length of the road in this state; except the value of the side or second tracks, all turn-outs, etc., shall be taxed in the county, township, city, or town in which the same are located. Thus the county, township, city, or town gets its proportion of the taxes assessed upon the main line, and the whole of the taxes assessed upon the side tracks and turn-outs, and the land upon which they and other improvements are located, to the extent that such side tracks, etc., are located in the county, township, city, or town.
It is argued that the portion of the above section providing that the value of such side tracks, etc., shall be taxed in the county, township, city, or town where located, authorizes the valuation and taxation of the lands upon which the side tracks are laid, together with the other iniprovements thereon, by the local authorities. That conclusion does not result from the language of the section, and to give the section the construction contended for would bring it in conflict with the spirit of the act, and, as we think, lead to a confusion in the valuation and assessment of the railroad property of the character bere under consideration.
Section 6364 also provides that the property denominated “rolling stock" shall be listed and taxed in the several counties, townships, cities, and towns; but that such “rolling stock” is to be valued and assessed by the state board of equalization is beyond question. Here, as we have seen, the land and lots are occupied by side tracks and turn-outs, which are used in the operation of the road. Upon these lands and lots there are also coal and wood sheds, a freight-house, water-tanks, a small repair-shop, and a round-house. Without going beyond the case to determine what might be the rule as to shops, etc., differently located, it is enough here that the buildings and improvements are all upon lands and lots which are a part of the right of way, and that such right of way, together with all superstructures and tracks, etc., thereon, is “railroad track," to be valued and assessed by the state board of equalization, and cannot be valued and assessed by the local authorities. In this conclusion we are sustained by the adjudications upon similar statutes.
It is claimed in argument that our statute for the taxation of railroad property is a copy of the Illinois statute upon the same subject. However that may be, it is in every material feature the same as the Illinois statute, and hence the adjudication by the supreme court of that state upon its statute are entitled to weight in the construction of our statute.
The exact question here involved was decided in the case of Chicago & A. R. Co. v. People, 98 Ill. 350. The railroad company occupied 32 acres of land, with side tracks, turn-outs, etc., which were used in the making up of trains, receiving and discharging freights, etc., in the transaction of the company's business. The ground was also used for car-shops, machineshops, blacksmith-shops, foundry, round-house, freight depot, stock-yards, paint-shop, etc. It was held that the ground thus occupied was a part of the right of way, and hence “railroad track;” and that such “railroad track," with all the buildings thereon, is to be valued and assessed by the state board of equalization, and not by the local authorities. We quote from the decision in that case the following: “These shops are, doubtless, necessary, in the successful operation of the railroad; but whether they are or not is not important, as the revenue law anticipated that such structures would be erected on the company's right of way, and made express provision, when that was done, that they should form a part of the right of way, and be taxed as such. This is apparent from section 42, which declares that the right of way, including superstructures of main, side, or second track, and turn-outs, and the station, and improvements of the railroad company on such right of way, shall be real estate, for the purpose of taxation, and denominated railroad track.' The fact, then, that the company has erected and is using shops on this land for the purpose of right of way does not, in the least, militate against the view that the land is held for right of way. Inasmuch as the exclusive power to assess railroad track and rolling stock has been conferred on the state board of equalization, there seems no reason whatever why the power of assessment of property situated as is the property in controversy should be conferred on the township assessors. The state board has many facilities for making a correct and just assessment which the township assessor cannot have. Under section 109 it has the power to examine persons and papers, where it may be necessary to reach a correct result. The locality where the property is situated gains nothing by an assessment made by the local assessor. Whether the assessment is made by the township assessor, or by the state board under section 43 of the revenue act, the value of side tracks, and turn-outs, stationhouses, depots, machine-shop, or other buildings belonging to the road, shall be taxed in the county, town, village, district, or city in which the same are located; thus giving the locality where the property is situated the benefit of the taxes to be collected from such property, whether it is assessed by the local assessors, or by the state board of equalization.” See, also, Chicago & N.W. Ry. Co. v. Miller, 72 Ill. 144; Chicago & A. R. Co. v. People, 99 Ill. 464; State Railroad Tax Cases, (under the Illinois statutes,) 92 U. S. 575; Union Pacific Ry. Co. v. Cheyenne, 113 U. S. 516; S. C. 5 Sup. Ct. Rep. 601; Northampton Co. v. Lehigh Coal & Nav. Co., 75 Pa. St. 461; Toledo & W. R. Co. v. City of La Fayette, 22 Ind. 262.
Our statute provides that all real estate of a railroad company other than that denominated “railroad track,” with all the improvements thereon, shall be