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& continuing one, and as applicable to arti. j nel for a considerable distance along the ficial as well as natural watercourses. course of the Little Calumet and at such a

[Ed. Note.--For other cases, see Constitutional gradient as to reverse the direction of its Law, Cent. Dig. 8 686; Dec. Dig. 234.]

flow, and the construction of an outlet for [No. 87.]

its waters in the form of an open ditch

to run northwardly, cutting through the Argued November 9 and 10, 1916. Decided sandy ridge and emptying into the Lake. January 8, 1917.

Pursuant to the provisions of the act, the

petition was referred to the drainage comN ERROR to the Supreme Court of the missioners. They made a report in favor

which affirmed a judgment of the Circuit tial damages, in excess of benefits, in favor Court of Porter County, in that state, modi-l of the Chicago, Indiana, & Southern and fying, and confirming as modified, the re- the Lake Shore & Michigan Southern Comport of drainage commissioners. Affirmed. panies with respect to their rights of way.

See same case below, 182 Ind. 178, 104 No benefits or damages were appraised to N. E. 975, 105 N. E. 905.

the Michigan Central. Under § 4 of the The facts are stated in the opinion. act, certain landowners assessed with bene

Messrs. John B. Peterson, J. A. Gavit, fits filed remonstrances against the awards Addison C. Harris, and Robert J. Cary for of damages to the former two companies. plaintiffs in error.

Each of the three companies filed remon. Messrs. John H. Gillett, Frank B. Pat- strances: the Lake Shore & Michigan Southtee, and Randall W. Burns for defendants ern and the Chicago, Indiana, & Southern in error.

upon the ground that the damages awarded

to them were inadequate because the new Mr. Justice Pitney delivered the opinion ditch, where it was to cross their rights of of the court:

way, would be 70 feet wide at the bottom, The Little Calumet river rises in La about 30 feet deep, and about 200 feet wide Porte county, Indiana, flows westerly across at the top, and the expense of bridging it, that and the adjoining counties of Porter with the tracks, would in each instance be and Lake into the state of Illinois, and, upwards of $100,000; the Michigan Central, after continuing its course for some dis because no damages were assessed in its tance in that state, empties into the Big favor, although, by the deepening of the Grand Calumet, which in turn empties into channel of the river at its crossing, it would Lake Michigan. In Indiana the river runs be required to take out the present piers approximately parallel to the south shore and abutments and erect new ones to supof the Lake. Intervening is a ridge of port the bridge, at a cost of about $60,000. sandy land about 1 mile in width, 30 feet Upon the commissioner's report and the rehigher than the water level of the lake, monstrances the matter came on for hearand 10 feet higher than the river. The ing before the circuit court, where findings Lake Shore & Michigan Southern and the were made setting forth the necessity for Chicago, Indiana, & Southern Companies the drainage, stating the plan in detail, own parallel railroad lines running along finding that it would be practicable to acthis ridge. Neither of these roads crosses complish the proposed drainage without an the river in Indiana. The Michigan Cen- expense exceeding the aggregate benefits; tral Railroad crosses the river in that state that the proposed work would benefit the upon a steel bridge resting on abutments public health, would improve the public and piers. The Calumet valley, in Porter highways in several townships specified, and and Lake counties, is a mile or more in would be of public utility. It was further width, lying between the ridge on the north found that the Chicago, Indiana, & Southand low hills on the south. The watershed ern and Lake Shore & Michigan Southern drained by the river in Indiana is about Companies, whose roads were to be crossed 350 square miles. At times the river fails by the main ditch, had no property other to carry within its banks all the water, and than their right of way that would be afthe overflows produce a marsh having an fected or interfered with or touched by the area of 14,000 acres. Under An Act Con- drainage proceeding, and these companies cerning Drainage, approved March 11, 1907 would not be damaged by the construction (Act 1907, p. 508; 3 Burns's Anno. Stat. of the proposed drain; and that at the (Ind.) 1914, § 6140), application was made point where the ditch was to pass under by defendants in error, owners of lands af- the bridge of the Michigan Central the natfected by the overflows, to the Porter cir- ural channel of the stream would have to cuit court, for the establishment of a be deepened, and this would necessitate the proposed plan of drainage, its essential fea- rebuilding of the abutments and piers upon tures being the cutting of an artificial chan-'which the bridge rested, but that this com

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 37 S.C.-10.

pany would neither be damaged nor bene | railroad companies with respect to highway fited by the proposed drain. A motion for crossings, it has been held by the supreme a new trial having been overruled, a judg. court of Indiana in a long line of cases ment was rendered confirming the report that the duty is applicable not only to the of the commissioners as modified by the original construction of a railroad across court, and ordering that the proposed work highways then in existence, but also where of drainage be established. The three com- highways are laid out and opened across a panies appealed to the supreme court of railroad after its construction; that it is Indiana, where the judgment was affirmed a continuing duty, requiring the railroad (182 Ind. 178, 104 N. E. 975, 105 N. E. to keep pace with the times, and the in905), and they bring the case here upon crease of public travel, the change of methquestions raised under the 14th Amendment ods and improvements of highways, and the to the Federal Constitution.

public desire for the increased ease and The principal contention of the Lake convenience of the traveling public. LouisShore & Michigan Southern and the Chi-ville, N. A. & C. R. Co. v. Smith, 91 Ind. cago, Indiana, & Southern Companies is 119, 121; Evansville & T. H. R. Co. v. Crist, that, since their railroads are not within 116 Ind. 446, 454, 2 L.R.A. 450, 9 Am. St. the area to be drained, and neither contrib- Rep. 865, 19 N. E. 310; Chicago, I. & L. ute to the formation of the marsh nor are R. Co. v. State, 158 Ind. 189, 191, 63 N. E. to be in any wise benefited by its drainage, 224; Chicago & S. E. R. Co. v. State, 159 their lands can be taken only through the Ind. 237, 240, 64 N. E. 860; Baltimore & exercise of the power of eminent domain, O. S. W. R. Co. v. State, 159 Ind. 510, 519, with appropriate compensation, and that a 65 N. E. 508; Lake Erie & W. R. Co. v. denial of such compensation is a taking of Shelley, 163 Ind. 36, 41, 71 N. E. 151; their property without due process of law. Southern Indiana R. Co. v. McCarrell, 163 A right to compensation is asserted in be- Ind. 469, 473, 71 N. E. 156; Vandalia R. half of the Michigan Central or the ground Co. v. State, 166 Ind. 219, 223, 117 Am. that its present bridge and abutments form St. Rep. 370, 76 N. E. 980; Cincinnati, I. no obstruction to the natural flow of the & W. R. Co. v. Connersville, 170 Ind. 316, Little Calumet river.

323, 83 N. E. 503, affirmed by this court It will be observed that none of the lands in 218 U. S. 336, 54 L. ed. 1060, 31 Sup. of any plaintiff in error is expropriated. Ct. Rep. 93, 20 Ann. Cas. 1206; New York, The damage they suffer is confined to a C. & St. L. R. Co. v. Rhodes, 171 Ind. 521, temporary inconvenience in the use of their 525, 24 L.R.A. (N.S.) 1225, 86 N. E. 840; rights of way pending the construction of Pittsburgh, C. C. & St. L. R. Co. v. Gregg, the drain, and the necessity for making 181 Ind. 42, 53, 102 N. E. 961. substantial expenditures of money in order But in the Railroad Act streams, waterto pass their railroads over the new water courses, and canals are mentioned along

But the record shows that each of with roads and highways. The terms emthe companies was organized and had its ployed are broad enough to include artificial existence under the general laws of the watercourses, whether employed for traffic, state for the incorporation of railroad com- | for irrigation, or for drainage.

And acpanies, that is to say, an act approved May cordingly it has been held by the supreme 11, 1852, and amendments thereto (1 Ind. court of the state that, with respect to a Rev. Stat. 1852, p. 409; 2 Burns's Anno. public ditch constructed under the Drainage Stat. [Ind.) 1914, &$ 5176 et seq.). By $ Act of 1907, railroad companies are under 13 of this act (as found in Burns, $ 5195) the same duty as with respect to highways, it is declared: "Every such corporation and that the company acquires its right shall possess the general powers, and be of way subject to the right of the state to subject to the liabilities and restrictions extend such ditches across it, without comexpressed in the special powers following: pensation to the company for the inter

Fifth: To construct its road upon ruption and inconvenience, if any, or for or across any stream of water, watercourse, increased expense or risk, or for the cost of highway, railroad or canal, so as not to inter- accommodating the railroad line to the fere with the free use of the same, which crossing. Chicago & E. R. Co. v. Luddingthe route of its road shall intersect, in such ton, 175 Ind. 35, 38-40, 91 N. E. 939, 93 manner as to afford security for life and N. E. 273; Wabash R. Co. v. Jackson, 176 property; but the corporation shall restore Ind. 487, 490, 95 N. E. 311, 96 N. E. 466. the stream or watercourse, road or high- No question is made but that the settled way, thus intersected, to its former state, law of the state is as we have stated it, or in a sufficient manner not to unnecessa- and that the charter obligations of plainrily impair its usefulness or injure its fran- tiffs in error are such as we have defined. chises."

An attempt is made to distinguish the LudConcerning the duty thus imposed upon 'dington Case upon the ground that the rail

course.

road there in question was within the drain-, ing of a street across it, and only nominal age district, and the Jackson Case upon the compensation was awarded, it was contendground that the railroad had built an em- ed among other things that the company bankment across a valley without provid- was deprived of its property without due ing sufficient culverts to carry off the water process of law because, in ascertaining the of the creek in time of heavy rains. It is compensation, the cost of constructing gates contended that since, in the present case, and a tower for operating them, planking the Lake Shore & Michigan Southern and the crossing, filling between the rails, putthe Chicago, Indiana, & Southern Roads ting in an extra rail, and the annual exlie upon the top of the ridge between the pense of depreciations, maintenance, etc., Little Calumet river and Lake Michigan, were disregarded. But the court held that and do not in any wise cause or contribute since the company took its charter and laid to the marsh, and are not benefited by the its tracks subject to the condition that their proposed drainage, they cannot lawfully be use might be regulated by the state so as included within the drainage district. And to insure the public safety, the exercise of as to the Michigan Central, it is argued that authority by the state was not subthat, since its bridge as heretofore con-ject to a condition that the company

should structed does not obstruct the natural flow be indemnified for the damage resulting of the stream, it cannot be subjected to from its exercise. In Chicago, B. & Q. R. any part of the cost of the drainage sys- Co. v. Illinois, 200 U. S. 561, 582, 595, tem. These distinctions, and a reference 50 L. ed. 596, 605, 610, 26 Sup. Ct. Rep. made in the same connection to Myles 341, 4 Ann. Cas. 1175, a plan of drainage Salt Co. v. Iberia & St. M. Drainage required the enlarging and deepening of a Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A. natural watercourse over which the rail

36 Sup. Ct. Rep. 204, are aside way crossed by a bridge, and the plan could from the real point of the case. The not be carried out without the removal of state is not proposing to assess plain- certain timbers and stones placed in the tiffs in error for benefits with respect creek by the company when it constructed to the drainage project, nor to tax them the foundation for the bridge, and these for its support. It is requiring them merely could not be removed without destroying to bear the cost of constructing crossings the foundation and rendering it necessary for their railroad lines over the proposed to construct another bridge with an opennew channel and outlet, "so as not to in- ing wide enough to carry the increased flow terfere with the free use of the same," and of the creek under the drainage system "in a sufficient manner not to unnecessarily adopted. The court held it to be the duty of impair its usefulness." With respect to the railway company at its own expense to this duty, if the state has a right to im- remove from the creek the bridge, culvert, pose it in aid of the drainage project, the timbers, and stones placed there by it, and remoteness or proximity of the area to be at its own expense to erect and maintain a drained is wholly immaterial.

new bridge to conform to the regulation es. In view of the obligations assumed by the tablished by the drainage commissioners respective companies when they accepted under the authority of the state, and that their franchises at the hands of the state, the enforcement of such a requirement it is very clear that the state may exercise would not amount to a taking of private its police power in laying out an artificial property for public use within the meaning watercourse across the rights of way with of the Constitution. In Cincinnati, I. & W. out making compensation to the companies R. Co. v. Connersville, 218 U. S. 336, 344, for the inconvenience and expense to which 54 L. ed. 1060, 1064, 31 Sup. Ct. Rep. they are thereby subjected, unless, indeed, 93, 20 Ann. Cas. 1206, it was held that it be made to appear that the power is be- since the railway company accepted its ing exerted arbitrarily or wantonly, or for franchise from the state subject to the conprivate as distinguished from public bene- dition that it would conform, at its own fit, or otherwise in disregard of the funda- expense, to any regulations not arbitrary mental rights of the companies concerned, in their character as to the opening or use in either of which cases there would be an l of streets which had for their object the abuse rather than an exercise of the power, safety of the public or the promotion of and the project could not lawfully be car. the public convenience, the company had no ried out against their opposition, with or right to be reimbursed for the moneys without compensation.

necessarily expended in constructing a In Chicago, B. & Q. R. Co. v. Chicago, bridge over a public street laid out through 166 U. S. 226, 252, 41 L. ed. 979, 990, 17 | its embankment. In Chicago, M. & St. P. Sup. Ct. Rep. 581, where the city was con- R. Co. v. Minneapolis, 232 U. S. 430, 58 demning certain parts of the right of way L. ed. 671, 34 Sup. Ct. Rep. 400, the same of the railroad for the opening and widen-' doctrine was applied, and held to sustain the refusal of compensation for the cost of commissioners are required to "assess the constructing and maintaining a railroad benefits or damages as the case may be bridge across a gap in the right of way to each separate tract of land to be afmade by the construction, under the author- fected thereby, and to easements held by ity of the state, of a canal to unite two railway or other corporations, as well as lakes that formed a part of a public park. to cities, towns, or other public or private

It requires no argument to show that the corporations, including any land, rights, establishment of a system of public drain- easements or water power, injuriously or age in the interest of the health and gen- beneficially affected,” there is discrimination eral welfare of the people is likewise an ob- in the judgment, in that an award is made ject that legitimately invokes the exercise of in favor of Lake county for damage to the police power of the state. New Orleans bridges and highways, while compensation Gaslight Co. v. Drainage Commission, 197 to plaintiffs in error for damages to their U. S. 453, 460, 49 L. ed. 831, 834, 25 Sup. respective roads, and to the Michigan CenCt. Rep. 471; Chicago, B. & Q. R. Co. v. tral for damages to its bridge, is denied. Illinois, 200 U. S. 561, 592, 50 L. ed. 596, But, as has been held many times, the 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. "equal protection" clause does not deprive 1175; Atlantic Coast Line R. Co. v. Golds- the states of power to resort to classificaboro, 232 U. S. 548, 561, 58 L. ed. 721, tion for purposes of legislation; and unless 727, 34 Sup. Ct. Rep. 364.

it appears that a state law as construed In the present case it is not and could and applied by the state court of last resort not reasonably be contended that the state bases discriminations upon arbitrary disis exercising its power arbitrarily, or wan- tinctions, we cannot judicially declare that tonly, or for a private benefit. It cannot be the state has refused to give equal protecdoubted that the general object of the Drain-tion of the laws. Singer Sewing Mach. Co. age Act of 1907 is to subserve the public v. Brickell, 233 U. S. 304, 315, 58 L. ed. interest. Its 2d section requires that pe 974, 979, 34 Sup. Ct. Rep. 493; Missouri, titioners for the establishment of a drain. K. & T. R. Co. v. Cade, 233 U. S. 642, 650, age project shall declare their opinion “that 58 L. ed. 1135, 1138, 34 Sup. Ct. Rep. 678. the public health will be improved, or that In the present case the supreme court of one or more public highways of the county, Indiana in effect held that g 3 of the Drainor street or streets of, or within the cor- age Act did not entitle a railway company porate limits of a city or town, will be bene- to damages in respect of its right of way fited by the proposed drainage, or that the which was not affected by the proposed proposed work will be of public utility." drainage in any manner otherwise than, by [3 Burns's Anno. Stat. (Ind.) 1914, § 6141, acceptance of its charter, it had agreed to p. 131.] By the 3d section the commission submit to. There is a very evident and subers are required to consider whether this stantial basis for a distinction that denies is true, and, if not, the petition is to be compensation to a private corporation in dismissed; and by $ 4 it is made a sufficient such a case, while at the same time allowground of remonstrance, resulting, if sus ing compensation to a public corporation tained, in the dismissal of the proceedings, that has made no such agreement. “that the proposed work will neither im. Judgment affirmed. prove the public health, nor benefit any public highway of the county, nor be of

(242 U. S. 386) public utility.” As to the particular JESSE L. HARNAGE and Delokee Gas & project under consideration, it is specifically Oil Company, Plffs. in Err., found, as we have seen, that a public benefit will result. In the Luddington Case, 175 ANNIE M. MARTIN and Roth, Argue, & Ind. 38, 91 N. E. 939, 93 N. E. 273, it Maire Brothers Oil Company. was expressly declared that ditches estab

INDIANS 13-ALLOTMENTS CONCLUlished under this law are public ditches of

SIVENESS OF DECISION OF LAND DEthe state, whose construction and repair PARTMENT. are matters of public or state concern.

1. A decision of the Land Department There exists, therefore, no basis for holding that a contestant was the owner of the im. that, by the judgment under review, the provements, within the meaning of a provi.

sion of the Cherokee Allotment Act of July property of any of the plaintiffs in error 1, 1902 (32 Stat. at L. 716, chap. 1375), is taken without due process of law with. 1 s'11, giving such owner a preferential right in the meaning of the 14th Amendment.

to the allotment, is binding on the courts The “equal protection" clause of the same unless there is no evidence to support it, Amendment is invoked upon the ground or it was otherwise the result of some er. that whereas by 3 of the Drainage Act ror of law on the part of the officer of such (Laws 1907, p. 513; 3 Burns's Anno. Department. Stat.' [Ind.) 1914, § 6142, p. 135) the 'Dig. $ 30; Dec. Dig. 13.]

[Ed. Note.-For other cases, see Indians, Cent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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INDIANS 13-INDIAN ALLOTMENTS See same case below, 40 Okla. 341, 136

OWNERSHIP OF IMPROVEMENTS-PREFER- Pac. 154.
ENTIAL RIGHT.

The facts are stated in the opinion. 2. An agreement by which the head of

Messrs. James A. Veasey, Lloyd A. Rowan Indian family gave her granddaughter the right to select some portion of the home land, and Jere P. O'Meara for plaintiffs in place as her allotment may fairly be held error. equivalent to giving her a sufficient interest Mr. Robert J. Boone for defendants in in improvements thereon to support a pre- | error. ferential right to an allotment under the Cherokee Allotment Act of July 1, 1902 (32 Mr. Justice Pitney delivered the opinion Stat. at L. 716, chap. 1375), g 11, providing of the court: that the land may be selected by each al. lottee so as to include his improvements.

This was an equity action involving the [Ed. Note.-For other cases, see Indians, Cent. right to an allotment of land in the CheroDig. $ 30; Dec. Dig. Om 13.)

kee Nation, containing about 77 acres. The INDIANS 13 INDIAN ALLOTMENTS plaintiff in error Harnage and the defendSURPLUS LANDS.

ant in error Martin are members of the 3. The prohibition in the Cherokee Al. Cherokee Tribe, and rival claimants to the lotment Act of July 1, 1902 (32 Stat. at L. allotment. The other parties are two oil 716, chap. 1375), § 18, against the holding of possession by a member of the tribe by companies that claim under Harnage and himself or through another of lands in ex

Martin respectively, and admittedly have no cess of 110 acres of average allottable lands higher rights than theirs. Harnage brought for himself, and a like amount for each of an action in one of the district courts of his minor children, does not apply to land Oklahoma for the purpose of charging the not in excess of that amount which the legal title to the lands in question, which head of an Indian family, in addition to stood in Mrs. Martin, with a trust in his her own holdings, held for her adult grand-favor, upon the ground that the Secretary of daughter, herself a member of the tribe, the Interior, through a gross misapprehensince, by the very terms of such section, the sion of the facts or an error of law, had granddaughter could hold possession by her. self, or through another, of lands not ex. awarded the land to her, when, under the ceeding in value 110 acres of average al- provisions of the Cherokee Agreement and lottable lands, and thus could hold the lands other acts of Congress pertaining to the by her grandmother as her agent.

subject, it should have been awarded to [Ed. Note.-For other cases, see Indians, Cent. him. Dig. $ 30; Dec. Dig. 13.) INDIANS 13 - INDIAN ALLOTMENTS

By the Agreement (Act of July 1, 1902, IMPROVEMENTS-PREFERENTIAL RIGHT.

chap. 1375, 32 Stat. at L. 716, 717) it was 4. There is nothing inconsistent with the provided as follows: policy of the Cherokee allotment act of July “Sec. 11. There shall be allotted by the i, 1902 (32 Stat. at L. 716, chap. 1375), Commission to the Five Civilized Tribes and in giving to a tribal member, as owner of a to each citizen of the Cherokee Tribe, substantial equitable interest in the im. land equal in value to one hundred and ten provements upon a tract of land when the act was passed, a preferential right to Cherokee Nation, to conform as nearly as

acres of the average allottable lands of the select that as her allotment.

[Ed. Note.-For other cases, see Indians, Cent. may be to the areas and boundaries estabDig. $ 30; Dec. Dig. Om 13.]

lished by the government survey, which land INDIANS W20—LANDS-JUDICIAL SALE- may be selected by each allottee so as to inRES JUDICATA-PARTIES.

clude his improvements. 5. Proceedings resulting in a judicial sale of improvements upon certain Cherokee allotments as being surplus holdings can

“Sec. 18. It shall be unlawful after ninety have no effect against an Indian not a party, days after the ratification of this act by the where they were taken long after her ap. Cherokees, for any member of the Cherokee plication for allotment.

Tribe to inclose or hold possession of, in any [Ed. Note.-For other cases, see Indians, Cent. manner, by himself or through another, Dig. $53; Dec. Dig. 20.)

directly or indirectly, more lands in valuo (No. 112.)

than that of one hundred and ten acres of Argued December 19, 1916. Decided Janu. average allottable lands of the Cherokee

Nation, either for himself or for his wife, or ary 8, 1917.

for each of his minor children, if members N ERROR to the Supreme Court of the of said tribe; and any member of said tribe

I

which affirmed a decree of the District ing the same in any manner inclosed, after Court of Washington County, in that state, the expiration of ninety days after the date in favor of defendants in a suit to charge of the ratification of this act shall be deemed the legal title to an Indian allotment with guilty of a misdemeanor.” a trust in plaintiff's favor. Affirmed.

By S8 74 and 75 (p. 727) the act was to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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