of the traction, company, and were parties to the acts hereinbefore found to have been done by and for said traction company, and they are threatening to build said railroad for the traction company across the right of way, railroad, and tracks of the appellant at grade and tear up that part of appellant's said siding which extends into said Main street, and will do so unless restrained therefrom. ing with its right to place crossings in said street, at the points of intersection of appellant's main track and passing track, by the traction company's tracks. That said traction company is further entitled to an order directing the appellant to restore the traction company's track in said Main street as the same was, and to thereafter cease in any manner to interfere with or to obstruct the proper use thereof, and that the traction The conclusions of law are, in substance, company ought to recover its costs. as follows: (1) That on August 25, 1905, said traction company was duly authorized to use and occupy Main street, in the town of Red Key, by its street and interurban railroad, and was rightfully in the use and possession of said street, by its tracks on either side of the points at which said street is intersected and crossed by appellant's main track and passing track, and said traction company is entitled to the relief prayed as to the use of said street. (2) That on said day appellant had no right to dig out and remove the track of said traction company from said Main street. (3) That said traction company is authorized and empowered and of right entitled to construct its street and interurban railroad over and across the main track and passing track of the appellant in Main street, in said town of Red Key, by placing in position at the points of intersection crossings of such construction and design as that the same will not interfere with the free use of appellant's railroad. (4) That said traction company is of right entitled to cross with its railroad and tracks the extension of appellant's siding as constructed over and across said Main street on said August 25, 1905, without being put to the expense of maintaining said crossing. (5) That on the account of the wrongful | digging out and removal of the track of the traction company in said Main street by appellant, it ought in equity to restore the said track so dug out and removed, and ought in equity to place, at the points of intersection therein, a crossing of such construction and design as that the same will not interfere with the free use of the street and interurban road of the said traction company, and is entitled to the relief prayed as to the restoring of said track, and as to the placing of a crossing in said siding. The controlling question in this case is whether or not an interurban street railroad, incorporated under the said act of 1861, and the amendments thereof and supplementary thereto, carrying passengers, baggage, express freight, and the United States mail, as said finding states said traction company intends to do, on and along the streets of a town or city with the consent of and subject to the regulation of such town or city, is an additional burden on the land used for such streets for which the abutting owner who owns the fee in such street is entitled to recover damages. Appellant cites cases from other jurisdictions which hold that the same is an additional burden for which it, as the owner of the fee in said street, has the right to recover damages. It is not necessary for us to review said cases cited by appellant, for the reason that this court, after a careful consideration of all the authorities, has held otherwise; that the same is not such an additional burden and servitude upon the street as to require an assessment and payment of compensation to the abutting lot owners or other owners of the fee in the street as a condition precedent to the occupancy and use of the street by said interurban company, or for which such owners of the fee in the street are entitled to recover damages. Kinsey v. Union Traction Company, 169 Ind. 563, 601-634, 81 N. E. 922; Mordhurst v. Ft. Wayne, etc., Co., 163 Ind. 268, 71 N. E. 642, 66 L. R. A. 105, 106 Am. St. Rep. 222. It being the law of this state that said interurban railroad is not an additional burden upon said Main street, it had the right to lay its tracks on and along said street and across the main and passing tracks of appellant, with the consent of the board of trustees of said town, and without the consent and against the will of appellant, because the same was a legitimate use of said street under the laws of the state, which appellant was not entitled to enjoin. Chicago, etc., Co. v. Whiting, etc., Co., 139 Ind. 297, 38 N. E. 604, 26 L. R. A. 337, 47 Am. St. Rep. 264; (7) That said traction company is entitled Mordhurst v. Ft. Wayne, etc., Co., 163 Ind. to an injunction perpetually enjoining the 268, 71 N. E. 642, 66 L. R. A. 105, 106 Am. appellant, its officers, agents, servants, and St. Rep. 222; Kinsey v. Union Traction Co., employés from in any wise obstructing, mo- 169 Ind. 563, 601, 604, 81 N. E. 922. See, allesting or interfering with the right of said so, South East, etc., R. Co. v. Evansville, etc., traction company to construct and maintain R. Co., 169 Ind. 339, 82 N. E. 765, 13 L. R. A. its street and interurban railroad, tracks, (N. S.) 916, and cases cited; De Grauw v. poles, wires, lines, and appliances for opera- | Long Island Electric R. Co., 43 App. Div. 502, ting the same in and along said Main street, 60 N. Y. Supp. 163; Id., 163 N. Y. 579, 57 N. and from obstructing, molesting, or interfer- E. 1108; New York, etc., R. Co. v. Rhodes, (6) That appellant is not entitled to a perpetual injunction, for the want of equity, and appellees ought to recover their costs. It is evident that the court did not err in its conclusions of law. It follows that the court did not err in overruling appellant's demurrer to the traction company's answer to the complaint, nor in overruling appellant's demurrer to the traction company's crosscomplaint. 171 Ind. 521, 86 N. E. 840; Lake Erie, etc., | interurban electric railroad crosses the tracks R. Co. v. Shelley, 163 Ind. 36, 42-47, 71 N. of a steam railroad. Wabash R. Co. v. Ft. E 151, and cases cited; Chicago, etc., R. Co. Wayne, etc., Traction Co., 161 Ind. 295, 310, v. West Chicago, etc., R. Co., 156 Ill. 255, 67 N. E. 674. 265-272, 40 N. E. 1008, 29.L. R. A. 485; Chicago, etc., R. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109; Chicago R. Co. v. Town of Cicero, 157 Ill. 48, 41 N. E. 640; West Jersey, etc., R. Co. v. Camden, etc., R. Co., 52 N. J. Eq. 31, 29 Atl. 423; Montgomery v. Santa, etc., R. Co., 104 Cal. 166, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. Rep. 89. Said The complaint, the traction company's anuse of the street of a city or town with the swer, and its cross-complaint, and appellant's consent of such city or town being a legiti- answer to the cross-complaint, were read in mate use thereof, and not an additional serv-evidence under an agreement that "the facts itude and burden thereon, it is evident that alleged in each of said pleadings were true the ordinance granting the traction company as therein alleged." Under this agreement the right to construct and maintain and oper- only facts properly pleaded could be considate its road on and along said Main street, ered, and all the conclusions of the pleader and the acts of the Legislature granting and mere apprehensions and fears alleged, such power to the cities and towns in the and all mere recitals, epithets, and surplusstate, is not in violation of either the four-age must be disregarded. However, a numteenth amendment to the Constitution of the ber of the findings of the court were based United States, or section 21, art. 1, of the solely upon the conclusions, apprehensions, Constitution of this state as claimed by ap- and fears of the pleader, expressed in the pellant. Section 5676, Burns' Ann. St. 1908 pleadings of appellant, and the recitals, epi(section 5468b, Burns' Ann. St. 1901) requires thets, and surplusage alleged in said pleadin a case like this that: "The company own-ings, and not upon facts properly pleaded. If ing the road last constructed at such crossing shall, unless otherwise agreed between such companies, be at the exclusive expense of constructing said crossing in a manner to be convenient and safe for both companies." The court's conclusions of law and the judgment rendered required the traction company to pay the expense of construction of said crossing where its track crosses appellant's main and passing tracks, but that appellant pay the expense of constructing the crossing where its switch track crosses the track of the traction company. This was in conformity with said section 5676 (5468b), supra, because the traction company's track was, at the point where it crossed the main and passing track of appellant, "the road last constructed," and appellant's switch track was, at a point where it crosses the traction company's track in Main street, "the road last constructed," because it was constructed after the traction company's track had been constructed at that point. The fact that the traction company constructed its track at that point for the purpose of avoiding the expense of such switch track crossing makes no difference. It had the right to construct its track at said point when it did; and, when appellant in the construction of its switch track found the traction track at that point, it should have put in a proper crossing at its own expense, instead of removing the traction company's track. Appellant insists that it was entitled in this action to prevent said traction company from crossing its tracks at grade, under section 5158a, Burns' Ann. St. 1901 (section 5227, Burns' Ann. St. 1908). Said section 5158a (5227), supra, has no application to a case like the one before us, where a street or there was a conflict in the facts properly alleged in the pleading, such facts should be found against the party having the burden of proof as to such facts or issue. Under this rule we cannot say that the findings of the court, so far as they were against appellant, were not sustained by the evidence, nor that they were contrary to law. As the judgmeut of the court was in accordance with the conclusions of law, the court did not err in overruling appellant's motion to modify the judgment. Nelson v. Cottingham, 152 Ind. 135, 137, 52 N. E. 702; Chicago, etc., R. Co. v. State ex rel., 159 Ind. 237, 242, 64 N. E. 860, and cases cited. Judgment affirmed. JORDAN and MONTGOMERY, JJ., dissent. MYERS, J. I concur in the conclusion as to the right of appellee to lay the track in question, but base my concurrence upon the proposition that there is no power in cities or towns to subvert the use of streets, so as to render them ineffective for the purpose of their creation, or to burden them in such manner as to constitute additional servitudes upon them. Primarily street railways were designed for local passenger transportation upon streets, to relieve congested conditions, to provide for transportation of the masses, and for rapid transportation between considerable distances, and the ingrafting of interurban legislation upon the street railways acts evinces the primary design of these lines of communication being for passenger trav el, but a legislative purpose seems manifest in the more recent enactments upon the subject to enlarge the primary purpose, so as to include both passenger communication be- | lant in sending out of the state of Indiana, tween independent cities and towns, and also freight traffic. It will not do to attempt a distinction between steam railroads and interurban roads by the term "commercial railroads," for that is a distinction in degree only-one is relatively as much a commercial railroad as the other-so we must look for some other distinction than a classification as "commercial," and it is found in the character of the use, and therein lies the distinction, as well as the reason for it, both as to the subjects| of transportation over streets of cities and towns, which may be regulated under the police power, the same as in case of ordinary railways owning a right of way, and as to the length, character, and frequency of train movement, which is not only the subject of regulation under the police power, but, irrespective of the character of the grant, if the use becomes obstructive, or subversive of the primary, ordinary, reasonable, or necessary use of streets as such, it would be unauthorized. Grand Trunk Ry. v. City of South Bend (1909) 89 N. E. 885. And the use should be restricted to carriage over streets of persons, and such property as is ordinarily or usually carried over streets. The grant must be made in discretion, or Baltimore v. Balcurtailed in enjoyment. for the purpose of collection, by garnish- Judgment affirmed. (45 Ind. App. 674) timore Trust Co., 166 U. S. 673, 17 Sup. Ct. STATE ex rel. ROE et al. v. DUDLEY et al. 696, 41 L. Ed. 1160; Block v. Salt Lake Co. (No. 7,046.) April 21, 1910.) (1893) 9 Utah, 31, 33 Pac. 229, 24 L. R. A. (Appellate Court of Indiana, Division No. 2. 610; Watson v. Robberson Ave. Co., 69 Mo. App. 548; Lockwood v. Wabash Ry. Co., 122 Mo. 86, 26 S. W. 698, 24 L. R. A. 516, 43 Am. St. Rep. 547; Delaware, etc., Co. v. Buffalo (1899) 158 N. Y. 266, 53 N. E. 44. (45 Ind. App. 696) MCGARY v. YEAGER. (No. 7,117.) APPEAL AND ERROR ($ 706*)-REVIEW-BILL Where a bill of exceptions, though purporting to contain all the evidence, affirmatively showed that certain receipts and the original assignment of the claim received in evidence were omitted from the transcript, grounds for new trial dependent on the evidence could not be reviewed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2944-2947; Dec. Dig. 706.*] Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge. Action by Elgin A. Yeager against Hugh D. McGary. Judgment for plaintiff, and defendant appeals. Affirmed. Thomas Duncan and Clyde McGary, for appellant. M. C. Embree and T. M. McDonald, for appellee. ROBY, J. This was an action to recover damages for the wrongful act of the appel 1. INTOXICATING LIQUORS (§ 317*) — ACTION ON BOND-TRIAL-INSTRUCTIONS. In an action under the civil damage act (Burns' Ann. St. 1908, § 8355), providing that persons selling intoxicating liquors in violation of the act shall be personally liable and also liable on their bond, instructions that, before plaintiffs could recover, it must appear by a preponderance of the evidence that the illegal sale of liquor to deceased was the proximate cause of their loss of means of support, were erroneous. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 461; Dec. Dig. § 317.*] 2. NEW TRIAL (§ 128*)-INSTRUCTIONS. Where, upon motion for a new trial, the fourth and fifth reasons assigned the refusal to give certain instructions requested by plaintiffs, among others 1, 2, and 10, so requested, and assignment No. 6 of the motion, averred that the court erred in giving, among others, instructions 1, 2, 8, and 10, the instructions to which mo§tion was addressed were made clear. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 259; Dec. Dig. § 128.*1 3. TRIAL (§ 243*)-MISLEADING INSTRUCTIONS. Where instructions given for plaintiff are inconsistent with instructions given for defendant, and they are calculated to mislead the jury, there is error. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.*] Appeal from Circuit Court, Gibson County; M. W. Fields, Judge. Action by the State, on the relation of Anna P. Roe and others, against James A. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Dudley and others. Judgment for defend | tain instructions requested by plaintiffs, ants, and relators appeal. Reversed, with in- among others, 1, 2, and 10, so requested. Asstructions. signment No. 6 of said motion avers that the tions 1, 2, 8, and 10. court erred in giving, among others, instrucThe instructions to which motion was addressed are thus made C. D. Hunt, S. W. Williams, Thos. Duncan, and Gilbert W. Gambill, for appellants. W. A. Cullop and Geo. W. Shaw, for appellees. COMSTOCK, J. Appellants instituted this action under section 8355, Burns' Ann. St. 1908, on a statutory bond executed by appellees, to recover damages alleged to have been sustained to their means of support through the unlawful sales of intoxicating liquors to Henry M. Roe, husband and father of the relators, and on account of which he lost his life. The cause was put at issue by general denial. The complaint was first filed in the Sullivan circuit court; but, after successive changes of venue, was tried in the court below, resulting in a verdict and judgment in favor of appellees. This is the second appeal. In the former appeal (40 Ind. App. 74, 81 N. E. 89) the judgment was reversed for the reason that a mandatory instruction, which purported to state all the material facts necessary to relators' recovery, omitted a material fact. clear. In instructions 15, 23, and 30, given at request of plaintiff, the jury were told to find for the plaintiff whether the loss of means of support was the direct or remote result of such intoxication. They are inconsistent with instructions 1, 8, 9, and 10, given at request of defendants, and were calculated to mislead the jury. Nickey v. Steuder, 164 Ind. 189, 196, 73 N. E. 117; Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101, 109, 47 N. E. 332; Cleveland, etc., R. Co. v. Snow, 37 Ind. App. 646, 654, 74 N. E. 908; Somers v. Pumphrey, 24 Ind. 231, 237; Summerlot v. Hamilton, 121 Ind. 87, 91, 22 N. E. 973; State ex rel. v. Sutton, 99 Ind. 300, 307; Kirland v. State, 43 Ind. 146, 154, 13 Am. Rep. 386. Objections are urged to other instructions, but we do not deem it necessary to consider them. Judgment reversed, with instructions to sustain appellants' motion for a new trial. STUDEBAKER v. ALEXANDER. 1 (No. 6,846.) (Appellate Court of Indiana, Division No. 1. April 27, 1910.) NESS. decision of the Supreme Court overruling a prior The Appellate Court is bound by the final decision. The overruling of appellants' motion for a new trial is assigned as error, and under said assignment appellants insist that the court erred in giving to the jury certain instructions hereinafter referred to. Instructions 1, 8, 9, and 10 given to the jury at the request of appellees were to the effect that, 1. COURTS (§ 100*)-DECISIONS-CONCLUSIVEbefore the plaintiff could recover, it must appear by a preponderance of the evidence that the illegal sale of liquor to the deceased was the proximate cause of their loss of means of support. These instructions were erroneous. Greener v. Neilhaus, 89 N. E. 377; Homire v. Halfman, 156 Ind. 470, 474, 60 N. E. 154; McCarty v. State, 162 Ind.ly 218. 70 N. E. 131; State ex rel. v. Terheide, 166 Ind. 689, 78 N. E. 195; Nelson v. State, 32 Ind. App. 88, 69 N. E. 298. Appellees make the point: That in appellants' motion for a new trial reason No. 6 is as follows: "The court erred in giving instructions numbered 1, 2, 4, 6, 7, 8, 9, 10, 11, 13, 15, 21, 22, 28, 29, 30, 31, 32, and the court erred in giving each one separately of said instructions." That this is the only assignment that calls in question the action of the trial court in giving said instructions. That two sets of instructions were presented, each embodying the numbers set out in the motion, one being from 1 to 36, inclusive, and the other from 1 to 32, inclusive. That the motion should have been addressed to the instructions requested by defendant, and for the reasons stated cannot be considered. In motion for a new trial, the fourth and fifth reasons assign the refusal to give cer | [Ed. Note.-For other cases, see Courts, Cent. Dig. § 341; Dec. Dig. § 100.*] 2. APPEAL AND ERROR (§ 843*)-DISPOSITION OF CAUSE-VOID JUDGMENT-REVERSAL. void rendered in void proceedings cannot deThe court on appeal from a judgment wholtermine any intervening errors that led up to the judgment, but will reverse the judgment with instructions to dismiss. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. § 843.*] On petition for rehearing. Denied. HADLEY, J. Appellant earnestly insists that we are in error in holding that this cause did not authorize a new trial as of right, and has cited numerous authorities to sustain her position. All these cases are easily distinguishable from the case at bar, except the case of Bisel v. Tucker, 121 In 249, 23 N. E. 81. This case seems to be in conflict with the later case of Pool v. Davis, 135 Ind. 323, 34 N. E. 1130. We are unable to reconcile them. Neither have we authori ty to overrule either of them. So we must take the later decision as the final expression of the Supreme Court. We are further For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 1 Transferred, 93 N. E. 23. Superseded by opinion, 100 N. E. 10. Rehearing denied. constrained to this view, since it seems to be in harmony with the more recent decisions of this and the Supreme Court. WATSON, J. This is an appeal from a judgment of $141.50 rendered against the appellant for the cost of building a fence along a portion of its right of way by an adjoining landowner. The error relied upon for reversal is the overruling of appellant's motion for a new trial. The first point raised is the admission of the notice to the railroad company in evidence, for the reason it was not given according to section 5449, Burns' Ann. St. 1908, which provides for the repairing of fences along rights of way; that the notice to the company, by its agent, should state that the fence is out of repair, where it is out of re Appellant also insists that we erred in holding that an appeal will not lie from a void judgment. Such is not the purport of our decision. What we do hold is that in a case like the present, when we have determined that the judgment appealed from is wholly void, we cannot go further and determine any intervening errors that led up to the judgment and which have no reference to its validity. Chicago, Indianapolis & Louisville R. Co. v. Town of Salem, 162 Ind. 428, 70 N. E. 530. And where, as here, the whole proceeding is void, we cannot give the judg-pair, and the probable cost of fixing it. From ment life by affirming it, and there is no reason for sending the case back, for no steps could be taken in it if it were taken back to the inferior tribunal. Chicago, etc., R. Co. v. Town of Salem, supra; Shoultz v. McPheeters, 79 Ind. 373. the averments of the complaint and the evidence given in said cause, it is shown that a fence had been built by the company along its right of way some 35 or 36 years ago, but at the time of the notice, and for a long time prior thereto, there had been practically no fence along such right of way; that it was in such a condition that a new fence would have to be built, instead of having the old one repaired. The notice to the company contemplated the building of a new fence as proWith the foregoing modification of the opin-vided under section 5448, Burns' Ann. St. ion and mandate herein before rendered, the 1908. The facts justify the giving of such petition for rehearing is denied. Per curiam it is therefore ordered that said judgment be reversed and the trial court be instructed to dismiss all proceedings in said cause subsequent to the rendition of the first judgment, costs to be taxed to appellant. (45 Ind. A 697) VANDALIA R. CO. v. BLUM et al. (No. 6,863.) (Appellate Court of Indiana, Division No. 7. RAILROADS (§ 104*)-FENCING RIGHT OF WAY Where a fence had been built by a railroad Appeal from Circuit Court, De Kalb County; Emmitt A. Bratton, Judge. a notice and the proceedings in accordance therewith. Vandalia R. Co. v. Kanarr, 38 Ind. App. 146, 77 N. E. 1135. The evidence sustains the allegations of the complaint, and warrants the conclusion reached by the trial court. Judgment affirmed, with 10 per cent. pen alty. (45 Ind. A. 713) VANDALIA R. CO. v. SMITH et al. (No. 6,838.) (Appellate Court of Indiana, Division No. 1. April 27, 1910.) Appeal from Circuit Court, De Kalb County; Emmitt A. Bratton, Judge. Action by Theodore A. Smith and others against the Vandalia Railroad Company. Judg ment for plaintiffs, and defendant appeals. Affirmed, with 10 per cent. penalty. J. G. Williams, J. E. Rose, J. H. Rose, and Anderson, Parker & Crabill, for appellant. Willis Rhoads, for appellees. WATSON, J. This is a companion case to Vandalia Railroad Company v. Blum et al. (No. 6,863, which was decided April 27, 1910) supra. The facts in this case warrant the conclusion reached by the trial court. Judgment affirmed, with 10 per cent. penalty. (45 Ind. A. 702) VANDALIA R. CO. v. WALKER. (No. 6,839.) Action by August F. Blum and others against the Vandalia Railroad Company. Judgment for plaintiffs, and defendant ap- (Appellate Court of Indiana, Division No. 1. peals. Affirmed, with 10 per cent. penalty. April 29, 1910.) RAILROADS (§ 103*)-RIGHT OF WAY FENCES -STATUTORY PROVISIONS. The primary object of the law requiring railroads to fence their rights of way, and For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |