JACKSON, Respondent, v. CITY OF ROCHESTER, Appellant. (Court of Appeals of New York, Second Divis ion. Jan. 14, 1891.) Henry J. Sullivan, for appellant. George A. Benton, for respondent. No opinion. Judgment affirmed, with costs, but without prejudice to an application by the defendant to the supreme court for such further stay of the issuing of the in MENTZ, Respondent, v. NEWWITTER, Appel- junction awarded by it as may, under the lant. (Court of Appeals of New York, Second Division. Jan. 14, 1891.) M. H. Cardozo, for respondent. John J. Linson, for appellant. No opinion. Motion for reargument de circumstances of the case, seem to that court proper. All concur, except BRADLEY and HAIGHT, JJ., not sitting. See 44 Hun, 624, mem. nied, with $10 costs. See 25 N. E. Rep. RODMAN, Respondent, v. CITY OF BUFFALO, 1044. Appellant. MCQUIGAN, Respondent, v. DELAWARE, L. & W. R. Co., Appellant. (Court of Appeals of New York, Second Division. Jan. 22, 1891.) No opinion. Motion for reargument denied, with $10 costs. See ante, 13. FOLLONSBEE V. AMERICAN LOAN & TRUST Co. (Court of Appeals of New York, Second Divis ion. Feb. 3, 1891.) No opinion. Motion to amend remittitur denied. TRAVIS et al., Appellants, v. TRAVIS, Re- KEANE, Respondent, v. VILLAGE OF WATER spondent. FORD, Appellant. (Court of Appeals of New York, Second Divis ion. Feb. 3, 1891.) No opinion. Case ordered stricken from the preferred calendar, and to be given its proper number on the general calendar, without costs. See 8 N. Y. Supp. 790. (127 Ind. 156) CHICAGO, ST. L. & P. R. Co. et al. v. EISErt. (Supreme Court of Indiana. Feb. 4, 1891.) RAILROAD IN STREET-ORDINANCE-INJUNCTION. 1. A complaint alleged that defendant railroad company was proceeding to lay a track within eight feet of the curb stone in the street in front of plaintiff's premises, while the ordinance authorizing the use of the street directed the road to be located 15 feet from the curb-stone, and to raise the grade of the street above the established grade, which it had no right to do, obstructing the street, and entirely cutting off plaintiff's only means of ingress and egress by wheeled vehicles, KNOWLES, Respondent, v. ERWIN, Appel- endangering her property by fire, and the lives of her family, obstructing the natural flow of the water, and turning it upon her premises. Held, that it stated a case of special damage not suf fered by the public in general, and showed the right to an injunction. 2. A railroad company, which has located a single track along a city street under an ordinance granting it the right to construct its railroad along the street within certain limits, and under general proceedings of appropriation in which damages were assessed to adjacent landowners, is not restricted to one track, but has the right to construct additional tracks if required by its business, if there is sufficient room to do so within the prescribed limits, without paying additional damages. 3. An ordinance granting a railroad company the right to build its road in a street provided that the company should grade the street, and that "the line of the railroad shall be located so as not to approach the sidewalk curb-stone nearer than 15 feet." Held, that the words, "line of the railroad," did not mean the extreme limit, including ties and grade, or the center or thread of the track, but referred to the rails, they being the only part of the road raised above the grade of the street. Appeal from circuit court, Cass county; D. B. MCCONNELL, Judge. N. O. Ross and Geo. E. Ross, for appellants. D. H. Chase and M. D. Fausler, for appellee. OLDS, C. J. This was an application by the appellee for a restraining order prohibiting the appellant from constructing a second or additional track on and along Canal street, in the city of Logansport, in front of appellee's property. The court heard the application, and granted a temporary injunction. Appellant moved tion, which was overruled, and exceptions. to modify the order granting the injuncThis appeal is prosecuted, and the granting of the injunction and overruling of the motion to modify the order are assigned as error. The railroad was originally constructed by the Toledo, Logansport & Burlington Railroad Company. In 1859, the common council of the city of Logansport, by a proper ordinance, granted to said Toledo, Logansport & Burlington Railroad Company the right to construct its railroad along and upon said Canal street, stipulating in the grant that said company should grade and gravel the street, make and maintain necessary culverts and crossings in good and substantial manner, to be graveled the whole width of said street from gutter to gutter, and the grade to be established so as not to interfere materially with the convenience of the public in crossing said railroad where other streets cross or intersect Canal street. Also that" between McKeen street and the alley, between Fourth and Fifth streets, the line of the railroad shall be located so as not to approach the sidewalk curb-stone nearer than fifteen feet." Said railroad company also prosecuted proceedings of appropriation, and had the damages sustained by adjacent land-owners assessed, including the damages to the lot now owned by the appellee. By these proceedings it was sought to appropriate whatever was authorized to be appropriated for such purposes under the statute. The use to be made of the property was in no way limited. The appellee is the owner of a lot adjacent to and fronting on said Canal street, in the city of Logansport, upon which is situated a frame residence, in which she resides. The appellee brings this suit, alleging in her complaint her ownership of the lot; that her dwellinghouse in which she lives is situated upon it; that the only way of ingress and egress to and from said lot and her residence is by way of and across said Canal street; that the appellant, upon Sunday, August 17, 1890, brought a large number of its employes from other parts of its road to the part in front of appellee's lot and residence, and commenced building a second or additional track along and upon said Canal street, between the center of the street and the line of her lot, the south rail of said track being within 8 feet of the north line of plaintiff's sidewalk; that said appellant placed about 100 ties in line along said street at a distance of about 18 inches apart, and placed upon them rails, in order to construct a track on which to run its cars and locomotives; that appellant has at least 20 cars loaded with gravel standing upon such temporary track, a portion of them standing in front of appellee's premises ready for the gravel to be unloaded, and used in ballasting said track; that the appellant is constructing said track at a height of 15 inches above the grade on such street; that the construction of such track is without authority of law, and being done without having first had appellee's damages to the lot adjacent to such street assessed and paid; and the construction of the same as contemplated, and as it is being constructed, will totally obstruct said Canal street, and deprive the appellee of ingress and egress to and from her said lot and residence by means of wheeled vehicles; endangers her residence, which is of timber, from fire escap | ing from appellant's locomotives; makes the crossing of the street dangerous to the life and limbs of plaintiff's family, and those visiting or having business with her at her residence; and will cause the water to overflow her sidewalk and premises, etc. The complaint is verified. The application was submitted to the court on the verified complaint, the ordinance of the common council, the record of the appropriation procedings, and an admission that the appellant had succeeded to all the rights of the former company, the Toledo, Logansport & Burlington Railroad Company; also the affidavit of Charles M. Bennett, division superintendent of the appellant, controverting the facts as to the manner of constructing the track. Upon this evidence the court passed upon the case, and granted a temporary restraining order restraining the appellant, its servants and employes, as per the language used in the order, "from placing any further rails or other obstruction on Canal street, in the city of Logansport, Indiana, in front of plaintiff's premises mentioned and described in plaintiff's complaint; and are restrained from unloading gravel, or any gravel or earth, in front of plaintiff's said premises, or from ballasting the temporary track now in front of plaintiff's premises, or from doing acts to the injury of the plaintiff in front of her said premises, or in any manner improving or adding to the track in front of plaintiff's premises on Canal street, until the further order of the court." These The complaint in this case stated a good cause of action entitling the appellee to an injunction. The license was first granted by the city for the use of the street for railroad purposes, and then followed the appropriation proceedings. These two proceedings fixed the rights of the company, and by them the right of the company to the use of the street was limited so as not to allow the line of the track to be laid within 15 feet of the curb-stone to the sidewalk along said street, and the tracks to be so laid as not to unnecessarily obstruct the travel upon and use of the street. The complaint alleges that appellant is proceeding to put down a track within 8 feet of the curb-stone, and to raise the grade at least 15 inches above the established grade of the street. allegations show that the appellant is about putting down a track at a place in the street, and to make a change in the grade, which it has no right to do. It charges the appellant with doing and attempting to do an unlawful act, and that the doing of such act, and laying the track at the place and in the manner in which it is being done, will obstruct the street, and entirely cut off the appellee's access to her lot by wheeled vehicles, endanger her property by reason of fire escaping from the engines upon the track, and the lives of the members of her family and others visiting her house; that the height of the grade will obstruct the natural flow of the water, and turn it upon and overflow her lot; that the only means of ingress and egress to and from her lot is by way of said Canal street. The complaint, we think, is sufficient to entitle the appellee to an injunction. It shows that the appellee sustains a peculiar damage not suffered by the public in general. Her only means of ingress and egress to and from her lot is through Canal street, in front of her lot, at the point where the track is being constructed; that the track is in such close proximity to her house as to endanger it by sparks emitted from locomotives; that it will turn the surface water upon and overflow her lot. These are things which peculiarly affect the appellee, but do not affect the general public. In such a case the law is well settled in this state that the individual is entitled to special damages. Fossion v. Landry, 123 Ind. 136, 24 N. E. Rep. 96. Where the damages are, as shown to be by the allegations of the complaint in this case, of an irreparable character, affecting the free use of the residence and home of the party, cutting off ingress and egress, endangering the property and the life and health of the family residing therein, the party is entitled to an injunction prohibiting the doing of the unlawful act affecting the rights of such person. The complaint being sufficient, and having been submitted to the court for decision on the verified complaint, the affidavit of the superintendent, together with the ordinance of the city council and record of the appropriation proceedings, the verified complaint afforded evidence from which the court may have found the facts entitling the appellee to an injunction. second track in accordance with the right granted by the city ordinance; but it is contended by counsel for appellee that appellants were not entitled to have the order modified as asked, for the reason that appellant moved to have it so modified as to allow it to construct its track so that the south rail of the track should not approach within 15 feet of the curb-stone of the sidewalk; whereas, by the city ordinance, it is provided that the "line of the railroad" should not approach nearer than 15 feet of the curb-stone, and that by the "line of the railroad" is meant the extreme limit, including the ties and grade; that the dirt and embankment on which the ties rest constitutes a part of the railroad; and that by the ordinance the extreme outside of the road cannot approach near er than 15 feet of the curb stone. We cannot agree with this construction. Such interpretation must be given to the words "line of the railroad" as will fairly express the intention of the common council in passing the ordinances. The word "line, " as applicable to the line of a public highway or running stream, is usually construed to mean the center or thread of the stream or highway; but it is evident that such a meaning was not intended in this case. To place such a construction on the language, and hold that it meant the center of that portion occupied by the railroad company, would give the company the right to locate its tracks up to the curbstone and the same distance in the opposite direction. Nor do we think it was inThe appellant moved the court to so tended that it should apply to the extreme modify the order and judgment granting outer edge, as in some places the grade or the injunction as to permit the appellant the bed of the road would be much wider. to complete its second track through Ca- Indeed, if there was any great amount of nal street in front of the appellee's proper- grading, cutting, and filling required along ty described in her complaint, by so plac- the street, the extreme outer edges of any ing such track as that the rail thereof on considerable grade would extend beyond the south side shall not approach the side- the limits thus allowed, without a wall or walk in front of appellee's said property any precipitous embankment. The ordinearer than 15 feet, and that it shall be nance requires the railroad company to placed at the grade of said street, and grade and gravel the street the entire shall be so constructed as not to impede width from sidewalk to sidewalk or from or interfere with the travel on said street gutter to gutter; and this being done, the unnecessarily. This motion the court only portion of the track necessarily or overruled. Appellant excepted, and the properly rising above the surface of the ruling is assigned as error. As we have grade are the rails, and they constitute the stated, the ordinance of the city granting track or railroad in one sense. In a broadthe right to use the street for railroad er sense, a railroad includes all the land, purposes and the record of the appropria- works, buildings, and machinery required tion proceedings were in evidence. The for the support and use of the road or city ordinance and the appropriation way, with its rails. See Worcester's defigave to the railroad company full author- nition of "railroads." We think the words ity to use so much of the street as was "line of railroad," as used in the ordinance, granted to them to be occupied for rail- has reference to the tracks, the rails upon road purposes, for the use of the company. which the cars run; that the line of tracks Upon such portion, if the business of the or line of rails should not approach nearer road required it, the company had a right than 15 feet of the curb-stone; that the orto construct one or inore additional dinance granted permission to use the centracks, if there was sufficient room to do ter of the street for railroad purposes, for so. The city ordinance did not limit its the purpose of laying the tracks, and that right to construct but one track, and the it confined the right of the company to the damages assessed under the appropria- use of the street by fixing the outside limtion proceedings covered all damages it to which it had the right to lay the rails growing out of the necessary and legiti- of its tracks, designating that the line of mate use of such portion of such street for rails should not approach nearer than 15 railroad purposes, whether it be occupied feet of the curb-stone, thereby preserving with one or more tracks. White v. Rail- for the use of the public 15 feet on each road Co., 122 Ind. 317, 23 N. E. Rep. 782. side of the tracks, in addition to the sideThe appellee had no right to a restraining walk. This gives to the words a reasonaorder permitting the construction of able construction, and one that is fair to | the railroad company, the adjacent property owner, and the general public. The conclusion reached in regard to the construction to be given to the ordinance and the rights of the parties, as herein before stated, leads to a reversal of the judgment for the error of the court in overruling appellant's motion to modify the order granting the injunction. The order should have been modified as asked for by appellant. Judgment reversed, at costs of ap. pellee, with instructions to the circuit court to sustain the appellant's motion to modify the judgment, and for further proceedings in accordance with this opinion. (127 Ind. 306) STATE ex rel. EGAN v. WOLEVER et al. (Supreme Court of Indiana. Feb. 19, 1891.) FALSE IMPRISONMENT-LIABILITY OF JUSTICEJURISDICTION OF MAYOR. 1. The mayor of a city, who, by Rev. St. Ind. § 3062, is given the same criminal jurisdiction as justices of the peace, which includes the offense of selling liquor to a minor, a misdemeanor, punishable by fine only, (Rev. St. Ind. § 2094,) is not liable to a civil action for false imprisonment for "corruptly and maliciously" retaining jurisdiction and imposing a fine, and imprisonment in default of payment, after defendant has moved for a change of venue, which, under Elliott, Supp. Ind. § 297, must be granted on proper affidavit by either party. 2. The act of the mayor in refusing to administer the oath to defendant on his affidavit for change of venue is judicial under Elliott, Supp. Ind. § 297, providing that a change shall be granted "whenever affidavit shall be made before the justice [mayor] by either party. 3. So is his decision as to the sufficiency ot an affidavit made before a notary instead of himself. Appeal from circuit court, Tippecanoe county; D. P. VINTON, Judge Pollard & Pollard, for appellant. L. D. Boyd and R. P. Davidson, for appellees. MCBRIDE, J. This was a suit by appellant for false imprisonment against Andrew W. Wolever, as mayor of the city of Delphi, and Allen M. Eldridge and Henry H. Montman, sureties on his official bond. Appellant was brought before the mayor for trial, charged with unlawfully selling intoxicating liquor to a minor. He was prosecuted by the name of James Aikens, and, on being arraigned, entered a plea of not guilty. He then asked for a change of venue from the court. This was not granted him, and the court proceeded to hear and determine the case. He was adjuged guilty, and fined $20 and costs. In default of payment he was committed to jail, where he remained one day, and then, to secure his release, paid the fine and costs, amounting to $30.80. pellant bases his right to recover on the failure of the court to grant him a change of venue, and on the circumstances connected therewith. The complaint was in four paragraphs, and the court below sustained a separate demurrer to each paragraph, upon the ground that it did not state facts sufficient to constitute a cause of action. An exception to this ruling, properly saved, presents the only question in the record. Ap Omitting prefatory and technical averments, the facts constituting the alleged | false imprisonment are stated in the first paragraph of the complaint as follows: "That on the 19th day of December, 1887, the relator, Mike Egan, was brought before said defendant Andrew W. Wolever upon a warrant issued by him as such mayor against the relator by the name of 'James Aikens' upon the charge of unlawfully selling liquor to a minor, and was compelled and required to plead to said charge; whereupon he pleaded not guilty, and, knowing that the issue thus made could not be fairly tried before the defendant, Andrew W. Wolever, because of the bias and prejudice of the said Wolever against every one who is charged with unawfully selling intoxicating liquors, and knowing that the defendant Wolever entertained malice towards all who are engaged in the lawful business of selling intoxicating liquors, and being unwilling to subject bimself to the peril of an unjust, unfair, and prejudicial trial of the charge against him, before the trial of said cause began he made and subscribed an affidavit in the words and figures following: 'State of Indiana, Carroll county. State of Indiana vs. Mike Egan. Affidavit for change of venue. The defendant, Mike Egan, being first duly sworn, says that he cannot have a fair and impartial trial in said cause before the mayor, Andrew Wolever, on the account of his prejudice against said defendant and his defense to said action. MIKE EGAN.' And, having made and subscribed said affidavit, he requested the defendant Andrew W. Wolever,said mayor, to swear him to said affidavit, to permit him to file the same, and thereupon to grant him a change of venue; but said defendant Wolever, acting as such mayor, refused to swear him to said affidavit, refused to file the same, and refused to grant him a change of venue, and proceeded to try and convict relator of the offense with which he was charged, and to inflict punishment upon him therefor. That in so acting the defendant Wolever acted unlawfully, maliciously, and corruptly, well knowing his duty to swear the relator to said affidavit, and that the same, when sworn to, was sufficient to compel a change of venue; well knowing the relator's right to apply for a change of venue. That this relator is the very person who was brought before the defendant Wolever by virtue of said warrant, the only person who pleaded to the charge embraced in said warrant and the affidavit upon which it issued, and was known to the defendant Wolever to be such person." The second paragraph, in addition, charges that the appellee, having in said cause found appellant guilty as charged, adjudged as his punishment that "he make his fine to the state of Indiana in the sum of twenty dollars, and that he be imprisoned in the jail of Carroll county for days, and that he pay the costs of the prosecution and stand committed until said fine and costs are paid or replevied." Said paragraph then proceeds as follows: "And adjudged no other punishment or penalty whatever; and because the relator was unable to pay said fine and costs the defendant Wolever, still act |