Alsmeier v. Adams
| Decision Date | 01 July 1914 |
| Docket Number | No. 8661.,8661. |
| Citation | 62 Ind.App. 219,105 N.E. 1033 |
| Parties | ALSMEIER et al. v. ADAMS et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Chas. Renster, Special Judge.
Action by Fielding A. Conway and others, on behalf of themselves and other taxpayers, against the Indianapolis Board of Public Works and others, to set aside an assessment roll and enjoin defendants from collecting assessments on account of the construction of a sewer. Judgment was rendered vacating the assessment as to Margaret E. Adams and others, and enjoining defendants from enforcing it as to them, and affirming its validity as against Lizzetta Alsmeier and others, and Lizzetta Alsmeier and others appeal. Reversed and remanded, with directions.Louis B. Ewbank, John W. Hanan, and J. Frank Hanan, all of Indianapolis, for appellants. Leo M. Rappaport and Albrecht R. C. Kipp, both of Indianapolis, for appellees.
Fielding A. Conway and others filed their complaint in the court below in behalf of themselves and a large number of other land and lot owners, who, with said Conway and others, are designated in this opinion as plaintiffs, asking as relief that the acceptance of the Pleasant Run interceptor sewer by the board of public works of the city of Indianapolis, and the primary assessment roll, adopted thereon, be set aside as fraudulent and void, and that certain defendantsbe enjoined from collecting any assessments on account of the construction of said sewer, and from taking any further steps in the matter of said improvement.
Stated generally, the basis of grievance, as set out in the complaint, is to the effect that while the specifications required that a large portion of said sewer be constructed of monolithic concrete, 8 inches in thickness, most of such portion, as actually constructed, consists of reinforced concrete pipes in sections of 3 feet in length and about 3 1/2 inches thick, and that said sewer was defectively constructed, and that material of poor grade was used.
The board of public works of said city, the treasurer of Marion County, as ex officio treasurer of said city, the city comptroller, and Morris H. Defrees, as contractor, were made defendants. Said Defrees having assigned his interest in said assessment roll to August M. Kuhn, and having thereafter died, his administrator, Hugh J. Defrees, and said assignee are made appellees in this court.
Morris M. Defrees' demurrer to the complaint for insufficiency of facts was overruled, and exception reserved. Each defendant filed a general denial. Said defendant contractor filed also a special answer of three paragraphs, numbered 2, 3, and 4. The theory of the second paragraph of answer is that said change in the method of construction was made by authority and direction of the city officers, on account of an alleged impossibility to use the continuous monolithic form of construction, because of large quantities of water in the trenches; the third that the lot owners were estopped by reason of an alleged acquiescence in the change of method of construction, they having knowledge of the facts; and the fourth that the work had been inspected and accepted by the city, and made a part of the city's sanitary sewer system, and could not be changed.
On a trial by the court, judgment was rendered in favor of appellee Margaret E. Adams and 170 other appellees, who were plaintiffs below, perpetually enjoining defendants from in any manner attempting to enforce assessments against the respective properties of said appellees, based on said work. Judgment was rendered against appellant Lizzetta Alsmeier and 60 other appellants, who were plaintiffs below.
The court, at the request of the parties, found the facts specially, and stated conclusions of law thereon. Except as stated in other connections, the material part of the finding of facts is in substance as follows: On the 22d day of June, 1906, the board of public works of the city of Indianapolis adopted a resolution, under the provisions of the act of 1905, for the construction of the Pleasant Run interceptor sewer, to begin on the east bank of White river at a designated point, and thence in a northeasterly direction, approximately a distance of 20,665 feet to the center of Keystone avenue. The specifications provided that said sewer from White river to a point within 3,580 feet of its Keystone avenue terminus should be constructed circular in form, and should consist of either monolithic construction 8 inches in thickness or of brick laid in two courses, and that the remaining part of said sewer should consist of vitrified tile sectional pipes double strength, 24 inches in diameter. The engineer's estimate of the cost of said sewer was $130,000.
On the 13th day of May, 1907, said board of public works, pursuant to notice duly given and bids received, entered into a contract in writing with said Morris M. Defrees for the construction of said sewer, according to the plans, specifications, etc., at the price of $5.835 per lineal foot. The profile showed the presence of water along the line of a part of said sewer at a depth of from 6 to 8 feet, but did not show the quantity or velocity of movement of such water. Said sewer throughout practically its entire length was constructed at a depth of from 5 to 10 feet below said water level. Through a large part of its course, said sewer followed the north bank of Pleasant Run, and within an average distance of 100 feet from that stream. The earth formation along the line of said sewer and adjacent to said stream consists of clay near the surface and of gravel and sand at greater depth, which sand and gravel was found to be impregnated with a large quantity of water flowing towards said stream. The quantity and velocity of such water could not be and was not definitely ascertained by said contractor or the city engineer, until in the process of actual construction.
Defrees commenced said work at the White river terminus in June, 1907, and, after constructing a few hundred feet of it, sublet the contract to John J. Jenkins. Defrees and Jenkins continued said work until 4,210 feet of monolithic concrete construction, eight inches thick, had been completed. Said sewer was constructed in a trench, averaging in depth about 19 feet, sheeted with wooden sheeting. In monolithic construction, the lower half of the sewer is called the invert and the upper half the arch. The process of monolithic construction, which process was followed in this case, is as follows: The bottom of the trench is excavated concave in form, and the concrete mixture is poured into the bottom the requisite thickness, whereupon a metal mold is placed upon such concrete in such a manner as to permit the formation of the entire invert. The concrete is then packed around such mold the required thickness. After the invert has become thoroughly dry and hard, said mold is inverted and placed to form the inner surface of the arch, and concrete packed around and allowed to harden as aforesaid. Said monolithic work here was constructed in sections varying from 10 to 50 feet in length. When said 4,210 feet of sewer had been constructed,Defrees and Jenkins met with difficulty in the amount of water encountered in the trench, which water seeped through the sheeting and into the trench in such quantities as to wash the cement out of the concrete, and thereby reduced it to a condition in which it would not harden, whereby the strength of such concrete was materially lessened. Defrees and Jenkins employed various methods to carry off said water and prevent it from coming in contact with said concrete, but were unable, by the means used, to prevent such water from coming in contact with the arch, which continued to crumble and cave in, whereupon said contractors obtained the consent of said engineer to substitute said reinforced concrete for said monolithic construction. Having obtained such consent, Defrees and Jenkins contracted for the manufacture of such reinforced concrete pipe to be used in completing the concrete portion of said work, the same to be manufactured along the line of the sewer at $1.50 per running foot for pipes 30 inches in diameter and $1.15 per running foot for pipes having a diameter of 27 inches, being the diameters required by the specifications, of which contract and the terms thereof said engineer and his assistant had full knowledge. Said contract provided that such pipes should be composed of a mixture of three parts sand and gravel and one part of cement, manufactured in molds above the ground, each pipe to be 3 feet long, with walls 3 1/2 inches thick, reinforced by steel bands running longitudinally and in circular form through such concrete; one end to be a flange or bell. Except as otherwise indicated in this opinion, said pipes were manufactured as specified in said contract. The process of construction by using such pipes, which process was followed here, is as follows: Two pipes are placed in the trench, so that the uniform end of one is inserted into the bell end of the other, and the two are bound and fastened together with hooks and bands of steel. A close-fitting steel band is then placed around the joint on the inside, and a like band with a slot in the top around the outside, and cement of a consistency to run freely, is poured into the slot until the joint is filled. When the cement in the joint has become thoroughly dry and hard, the inner and outer bands are removed.
On the 24th day of September, 1909, said engineer filed with said board his report to the effect that the contract for said improvement had been completed, which report showed the length of said sewer to be 20,612 feet, and that the contract price at $5.835 per lineal foot amounted to $120,271.02, and that, making certain additions for extra work and deductions for material not furnished, the net contract price was $119,370.77, being the amount of the assessment...
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