City of Elkhart v. Wickwire

• Citation: 121 Ind. 331,22 N.E. 342
• Parties: City of Elkhart v. Wickwire et al.
• Decision Date: 30 October 1889
• Court: Supreme Court of Indiana

121 Ind. 331

22 N.E. 342

City of Elkhart

v.Wickwire et al.¹

Supreme Court of Indiana.

Oct. 30, 1889.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

Perry L. Turner and Baker & Defrees, for appellant. H. C. Dodge, for appellees.

Berkshire, J.

This is an action to annul and enjoin certain assessments which the common council of the appellant has made against the different properties owned by the appellees. The complaint, in brief, is as follows: That the common council enacted an ordinance for the construction of a sewer along one of its streets known as “Second Street,” from a certain named point on the lands owned by the Lake Shore & Michigan Southern Railway Company to the St. Joseph river. That the ordinance was duly enacted, and, as we understand the complaint, there is no objection made to the validity of the ordinance, but the cause of complaint is that the ordinance was never published, and therefore the appellees were uninformed as to its enactment and contents. That after the passage of the ordinance, and on the 7th day of October, 1884, and before any estimate of the cost of the improvement, and before having ascertained that its cost would not exceed 10 per cent. of the assessed value of the real property to be affected, the appellant entered into a contract for the construction of said sewer, a copy of which is embodied in the complaint. That the work was fully completed on the 13th day of May, 1885, accepted by the appellant, and fully paid for out of its city treasury. That, at the time the work was completed and paid for, no estimate of its costs had ever been made, and the appellees had no notice that the city intended to assess the appellees for its reimbursement. That on the 1st day of June, 1885, the city council of the appellant duly enacted another ordinance for the construction of other and different sewers than said Second-Street sewer. That the description of the property declared in said ordinance to be benefited by said last-mentioned sewer included all the property bordering upon or in any way benefited by the Second-Street sewer, all of which was sufficiently drained at the time by the said Second-Street sewer. This ordinance is also embodied in the complaint, after which is the following averment: “That, although it was recorded as set out, the following amendment was made to it: ‘That said sewer-pipes west of Second street extend to Third street, and that they be laid in the center of each alley from Sycamore street up to and including the first alley south of Harrison street;”’ but nothing further is alleged with reference to the amendment. That on the 30th day of June, 1885, the appellant let the contract for the construction of all of said sewers. That at no time prior to the letting of said contract had the appellant caused any estimate to be made of the cost of the improvement, and had in no way ascertained that the cost thereof would not exceed 10 per cent. of the assessed value of the property to be benefited thereby; and that the contractors fully completed said sewers on the 1st day of September, 1885, and the same were paid for out of the general revenue of the city. That on the 10th day of March, 1886, by resolution the said common council of said city appointed three of its members to make an estimate of benefits resulting to property from the construction of said sewers. That at no time prior to March 10, 1886, had any committee of said council taken any action towards assessing any of the expense of said work against the appellees or their property. That on said day, without in any manner notifying the appellees, or without any precedent publication of said ordinances, or without giving the appellees or other interested citizens an opportunity to be heard as to any of the matters involved in the construction of said sewers or the matter of said assessment, the said committee made its report to the said common council, and apportioning to each piece of property the amount that should be assessed against it because of the accruing benefits on account of the construction of said sewers. That the report was approved, and the amount as apportioned by the committee assessed against each of said several pieces of property by resolution adopted by said council, nine of the members of said council voting in the affirmative and three in the negative. That on the 14th day of April, 1886, the said common council directed the city treasurer to proceed with the collection of said assessments. That the several assessments are unjust and unequal as between the several appellees, and as between them and other persons who are not parties to the action, and are not based on a just and equitable assessment of the expenses incurred and benefits to accrue from said improvement. That the cost of said sewers and the assessment against the property of the appellees each and severally exceeds a sum equal to 10 per cent. of the valuation for taxation. That those of the appellees who own property on said Second street which is not situated upon or abutting said lateral sewers are assessed for the costs of the construction of said Second-Street sewer, as well as for the construction of said lateral sewers; and that those of them who own property abutting on said lateral sewers, and not abutting on said Second-Street sewer, are assessed for the cost of constructing said Second-Street sewer, as well as said lateral sewers. That said Second street is 250 rods long, running north and south, and said Second-Street sewer extends the full length thereof. That said lateral sewers connect with said Second-Street sewer every 25 rods east and a like distance west from said Second-Street sewer. That no ordinance, by-law, tax authorized by law, resolution, or action of said appellant or its common council, or other officer thereof, than above fully set forth, has ever been passed or taken by which the appellant claims the right to said assessment and tax against appellees and their property. That said assessment was not made upon the basis of the whole length of said street so improved at a uniform price, estimated per running foot; and said appellant has not sought, and is not now seeking, to enforce said assessments by the issuance of a precept to the contractor, but has ordered its treasurer to enforce said assessments for its reimbursement. That the appellant has no right to claim, maintain, or assert said lien against the property of the appellees. That all of said sewers were established by said appellant as a public improvement of the streets of said city generally, and not for the benefit of the appellees or of their property. It is then averred that the said assessments have thrown a cloud upon the appellees' titles, and a prayer that the assessments be annulled, that the appellees' titles be quieted, and that an injunction be granted. The appellant demurred to the complaint, which demurrer was overruled, and the proper exception taken. The case was then put at issue by the filing of an answer in general denial, and submitted to the court for trial, with a request for a special finding. Special finding made. Exceptions to...