Arnholt v. City of Columbus, 18733

• Decision Date: 08 November 1957
• Docket Number: No. 18733,18733
• Citation: 128 Ind.App. 253,145 N.E.2d 660
• Parties: Forest ARNHOLT et al., Appellants, v. The CITY OF COLUMBUS, Appellee.
• Court: Indiana Appellate Court

Page 660

145 N.E.2d 660

128 Ind.App. 253

Forest ARNHOLT et al., Appellants, v. The CITY OF COLUMBUS, Appellee.

No. 18733.

Appellate Court of Indiana, In Banc.

Nov. 8, 1957.

Rehearing Denied Dec. 19, 1957.

Transfer Denied Feb. 14, 1958.

William A. Conner, Columbus, Davis, Hartsock & Wright, Indianapolis, Paul Y. Davis, Harvey B. Hartsock, Indianapolis, of counsel, for appellants.

Dutton & Kappes, Indianapolis, Leon D. Cline, Joseph S. Thomson, Columbus, C. B. Dutton, Philip S. Kappes, Carl D. Overman, Indianapolis, of counsel, for appellee.

CRUMPACKER, Chief Judge.

In the matter of the annexation of certain unincorporated territory, known as Mead Village, to the city of Columbus, Indiana, the Bartholomew Circuit Court, on February 10, 1955, entered the following finding and judgment:

'* * * the Court now being duly advised in the premises finds that less than 51% of the persons owning property in the territory (Mead Village) sought to be annexed by Ordinance Number 1592, 1954, of the City of Columbus, Indiana, passed by the Common Council thereof on March 1, 1954, have remonstrated and that the adding of such territory to the City of Columbus will be for its interest and will cause no manifest injury to the persons owning property in the territory sought to be annexed. The Court further finds that the prosperity of such City and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation, and that the annexation should take place.

'It is therefore considered, ordered, adjudged and decreed by the Court that less than 51% of the persons owning property in the territory (Mead Village) sought to be annexed have remonstrated, and that the adding of such territory to the City of Columbus, Indiana, will be for its interest and will cause no manifest injury to the persons owning property in the territory sought to be annexed and that the prosperity of such City and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation.'

The court took such action pursuant to § 48-702, Burns' 1950 Replacement, before the same was amended by Acts of 1955, ch. 269, § 3, p. 720. The statute prior to the 1955 amendment reads as follows:

'If the court should be satisfied upon the hearing of (that) less than fifty-one (51) per cent of the persons owning property in the territory sought to be annexed, have remonstrated, and that the adding of such territory to the city will be for its interest and will cause no manifest injury to the persons owning property in the territory sought to be annexed, he shall so find and said annexation shall take place. If the court shall be satisfied that fifty-one (51) per cent or more of the persons owning property in the territory sought to be annexed, have remonstrated, then such annexation shall not take place, unless the court shall find from the evidence that the prosperity of such city and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation. In case the court shall so find, the annexation shall take place, notwithstanding the remonstrance.'

The appellants assail the above finding and judgment on two grounds. First, they say that the undisputed evidence and the law applicable thereto compel the conclusion that more than 51% of the persons owning property in the territory sought to be annexed remonstrated against such annexation; and, second, they contend there is no evidence whatever to support the court's finding 'that the prosperity of such city and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation.' It is obvious, having the pertinent statute in mind, that if the evidence warrants the finding immediately above quoted the number of remonstrators who protested annexation becomes unimportant. We therefore proceed at once to a consideration of the appellants' second proposition and approach the question it poses mindful of the admonition that if there is any evidence of probative value in the record tending to support the finding in question such evidence must be taken as conclusive of the issue and the judgment must be sustained.

From 1905 to 1955 a remonstrance against the annexation of territory to a city or town was unavailing if the court 'shall find from the evidence that the prosperity of such city and territory will be materially retarded and the safety of the inhabitants and property thereof endangered without such annexation.' Prior to 1905 annexation proceedings were governed by Acts of 1867, ch. 7, § 6, p. 33. When the owners of the territory sought to be annexed objected to annexation the common council of the city seeking the same was required to 'present to the board of county commissioners a petition setting forth the reasons for such annexation.' Upon receipt of such a petition the commissioners were required 'to consider the same and * * * hear the testimony offered for or against such annexation and if, after inspection of the map and of the proceedings had in the case, such board is of the opinion that the prayer of the petition should be granted it shall cause an entry to be made.' From 1867 to 1905 a number of Supreme Court decisions have discussed and determined the reasons deemed...