City of Kokomo v. Mahan

• Decision Date: 17 February 1885
• Docket Number: 11,625
• Citation: 100 Ind. 242
• Parties: The City of Kokomo et al. v. Mahan
• Court: Indiana Supreme Court

100 Ind. 242

The City of Kokomo et al. v. Mahan

No. 11,625

Supreme Court of Indiana

February 17, 1885

From the Howard Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

J. W Kern, J. C. Blacklidge, W. E. Blacklidge and B. C. H. Moon for appellants.

M. Bell and W. C. Purdum, for appellee.

OPINION

Elliott J.

The complaint of the appellee alleges that he is the owner of a lot in the city of Kokomo, fronting on Taylor street; that on the 12th day of August, 1874, the common council of the city legally adopted an ordinance for the construction of a sidewalk in front of appellee's lot; that it was provided in the ordinance that the sidewalk should be constructed upon the grade established by the civil engineer; that the engineer, pursuant to the provisions of the ordinance, did establish the grade, and that the sidewalk was constructed upon the grade established, and in accordance with the requirements of the ordinance. It is also alleged that the common council of the city, on the 25th day of June, 1883, adopted an ordinance providing for the construction of a new sidewalk, and so changing the grade as to raise the sidewalk from four to six inches above the former grade; that the city has awarded a contract for the improvement of the sidewalk under the provisions of the ordinance of June, 1883, and that the contractor has entered upon the work, and will proceed with it unless enjoined. The allegations upon the subject of the injury, which it is asserted will result from the proposed change of grade, are as follows: "Plaintiff further avers that if said work is allowed to proceed, and he is compelled to pay therefor under said ordinance, he will be greatly damaged, to wit, in the sum of $ 75.56. Plaintiff further avers that he will sustain damages occasioned by said proposed change of grade in the sum of $ -----, unless said defendants are restrained and enjoined from proceeding therewith."

The statute requiring compensation to be assessed and tendered in cases where a change is made from an established grade applies to sidewalks. It would be a perversion of the language of the statute to hold that it applies only where the grade of the part of the street used for passage by horses and vehicles is changed. Such a construction would defeat the purpose of the statute. It is too well settled to admit of debate, that the term "street" in its ordinary acceptation includes sidewalks, and that it is always given that meaning unless the language with which it is associated changes or restricts its signification. State v. Berdetta, 73 Ind. 185 (38 Am. R. 113); 2 Dillon Munic. Corp. (3d ed.), section 780, n. 1.

We have no doubt that in a proper case the property owner may maintain an injunction to restrain a municipal corporation from making a change of grade in a street without first causing the damages to the property owner to be assessed and tendered him as the statute requires. The owner is not bound to wait until the improvements are completed, and then sue for damages. This is expressly decided in City of Logansport v. Pollard, 50 Ind. 151, and the decision is in harmony with many other decisions upon kindred subjects.

The authority to improve streets is in its nature a continuing one, and is not exhausted by directing one or more improvements, but may be exercised as often as the public welfare demands. Macy v. City of Indianapolis, 17 Ind. 267; Goszler v. Corporation of Georgetown, 6 Wheat. 507. This settled principle necessarily leads to the conclusion that the municipal authorities may collect the cost of a second or subsequent improvement from adjoining lot owners, and so it has been often decided. City of Lafayette v. Fowler, 34 Ind. 140; Yeakel v. City of Lafayette, 48 Ind. 116; Williams v. Mayor, etc., 2 Mich. 560; McCormack v. Patchin, 53 Mo. 33; S. C., 14 Am. R. 440; Gurnee v. City of Chicago, 40 Ill. 165; Municipality, etc., v. Dunn, 10 La.Ann. 57; 2 Dillon Munic. Corp. (3d ed.), section 780.

The municipal authorities are invested with the discretionary power of determining when improvements are required, and the question of when they are necessary can not be determined by the courts. Macy v. City of Indianapolis, supra; Smith v. Corporation of Washington, 20 How. (U.S.) 135. Judge Dillon, in speaking of the power to improve streets, says: "It may, therefore, be exercised from time to time, as the wants of the municipal corporation may require. Of the necessity or expediency of its exercise, the governing body of the corporation, and not the courts, are the judges." 2 Dillon Munic. Corp. (3d ed.), section 686. This is in harmony with the general principle, so often declared by this and other courts, that a court will not interfere with the exercise of a discretionary power conferred upon another tribunal, or upon a public officer. Mayor, etc., v. Roberts, 34 Ind. 471.

It is evident that the fact that the city is threatening to collect the cost of the second improvement from the appellee adds nothing to the force of his complaint, for, as the authorities we have referred to clearly establish, the city had a right to do this, and it would be a manifest absurdity to affirm that a party can be enjoined from doing, in a lawful way, what he has full legal authority to do.

The only legal injury (if it be proper to call the...