Bass v. City of Fort Wayne

• Citation: 23 N.E. 259,121 Ind. 389
• Decision Date: 09 January 1890
• Docket Number: 11,990
• Parties: Bass et al. v. The City of Fort Wayne et al
• Court: Supreme Court of Indiana

23 N.E. 259

121 Ind. 389

Bass et al. v. The City of Fort Wayne et al

No. 11,990

Supreme Court of Indiana

January 9, 1890

From the Allen Circuit Court.

Judgment affirmed.

J Morris, C. H. Aldrich, J. M. Barrett, W. H. Coombs, R. C Bell, S. R. Morris and R. S. Taylor, for appellants.

J. H Colerick, for appellees.

OPINION

Elliott, J.

The city of Fort Wayne, proceeding under the statutes of the State, established a system of water-works for the purpose of supplying the city and its citizens with water. The source from which water was first obtained proved unsatisfactory, and the city, by subsequent proceedings, extended its pipes to the St. Joseph river, and from that stream obtained the supply of water now used. The appellants have acquired an interest in the water of that river, and contend that the city has no right to take water from the pond created by a dam of which they are the owners. They assert that the proceedings of the municipal authorities are illegal, and they seek, by injunction, to restrain them. The trial court held their complaint bad. This introductory statement is sufficient to outline the general character of the controversy, and as each particular question is discussed we shall consider in detail the portions of the record which bear upon the respective questions.

The validity of the proceedings is assailed upon the ground that the statute under which the city assumed to proceed violates the Constitution, and is void. This position rests upon the assumption that a statute which authorizes a municipal corporation to appoint commissioners to assess damages in proceedings under the right of eminent domain infringes the right of a citizen to have his compensation assessed by impartial men, chosen by disinterested parties. We are satisfied that a property-owner has a right to have his damages assessed by disinterested persons, at some stage of the proceedings prior to a final judgment. Bradley v. City of Frankfort, 99 Ind. 417. But this does not fully meet the question, since the point here made is that the common council is not disinterested, and therefore could not be invested with power to appoint the commissioners. If the property of a citizen is demanded by a private corporation, the corporation can not be invested with the authority to select the commissioners in a case where there is no right of appeal; but here the corporation, invested with the authority to appoint, is a governmental one, and its officers are public officers charged with purely public duties. They have no private interests to subserve, and no benefit can accrue to them as individuals. Municipal corporations are governmental instrumentalities, and they are invested with delegated governmental powers. It is held that interest, as a taxpayer, will not disqualify; and public officers charged with a sworn public duty, although chosen by the voters of a city, can not justly be said to have any other private interest than that of taxpayers. State v. Crane, 36 N.J.L. 394; City of Minneapolis v. Wilkin, 30 Minn. 140, 14 N.W. 581. It is, therefore, doubtful whether the courts could hold a statute unconstitutional which gave the common council of a city the authority to appoint commissioners, even if no right of appeal were given. In such cases as this, however, the statute expressly gives the right of appeal. R. S., section 3266. We are far within the authorities in holding, as we do, that, where the right of appeal is given, a statute providing that commissioners may be appointed by the common council is not unconstitutional. The authorities establish the doctrine that the constitutional requirement is satisfied if an appeal is given and an opportunity is thus provided for trial by a duly constituted legal tribunal. Maxwell v. Board, etc., 119 Ind. 20, 19 N.E. 617, and cases cited; Weaver v. Templin, 113 Ind. 298, 14 N.E. 600 (301); Ray v. City of Jeffersonville, 90 Ind. 567; Flournoy v. City of Jeffersonville, 17 Ind. 169 (79 Am. Dec. 468); New Albany, etc., R. R. Co. v. Connelly, 7 Ind. 32; Lamb v. Lane, 4 Ohio St. 167; Cairo, etc., R. R. Co. v. Trout, 32 Ark. 17; Hapgood v. Doherty, 8 Gray, 373; Flint River, etc., Co. v. Foster, 5 Ga. 194.

The law invests the common council with general jurisdiction of the subject, and gives the property-owner a right of appeal. It is quite well settled that where there is jurisdiction and a right of appeal, defects or irregularities in the proceedings can not be made available in a collateral attack. Jackson v. Smith, 120 Ind. 520, 22 N.E. 431, and cases cited; Kleyla v. Haskett, 112 Ind. 515, 14 N.E. 387; Hume v. Little Flat Rock, etc., Ass'n, 72 Ind. 499. It is also firmly settled that where there is an adequate legal remedy by appeal an injunction will not lie. Marshall v. Gill, 77 Ind. 402; Sims v. City of Frankfort, 79 Ind. 446; Caskey v. City of Greensburgh, 78 Ind. 233. The rule forbidding collateral attacks, where there is general jurisdiction of the subject, applies to cases where there is some notice, although the notice may be so defective as not to be sufficient to withstand a direct attack. Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795; Otis v. DeBoer, 116 Ind. 531; Lake Shore, etc., R. W. Co. v. Cincinnati, etc., R. W. Co., 116 Ind. 578, 19 N.E. 440; Hackett v. State, 113 Ind. 532, 15 N.E. 799; Kleyla v. Haskett, supra; Muncey v. Joest, 74 Ind. 409; McAlpine v. Sweetser, 76 Ind. 78; Hume v. Conduitt, 76 Ind. 598.

These familiar rules dispose of many of the questions discussed by counsel, since, under their operation, the appellants are precluded from maintaining an injunction unless they show that the proceedings are wholly void. Defects in petitions, resolutions, or notices can not be made available in a collateral attack, unless they are such as render the proceedings entirely void, and this result is possible only in cases where there is an entire want of authority. Adams v. Harrington, 114 Ind. 66, 14 N.E. 603; Ely v. Board, etc., 112 Ind. 361, 14 N.E. 236.

The question which was the most practicable and expedient route for the line of pipes was one exclusively for the decision of the common council, as were all other questions of necessity and expediency. The decision of that body can not be reviewed by the courts, for it is almost an elementary rule that where such questions are committed to the decision of inferior tribunals their judgment can not be reviewed. Weaver v. Templin, 113 Ind. 298, 14 N.E. 600, and authorities cited.

Whether the appellants were entitled to compensation for pipes laid in the highways upon which their land abutted was one to be tried on appeal. The right secured to them enabled them to try all questions concerning the compensation to be awarded them, and, not having availed themselves of the remedy given by law, they can not have that question tried in a suit for injunction.

If proceedings are instituted for the purpose of appropriating a specifically described parcel of property, the jurisdiction of the tribunal for the assessment of damages is limited and confined to that property. A municipal corporation having specifically described one parcel or one species of property, which it proposes to appropriate, can not appropriate another and entirely different parcel or species of property. If the petition, resolution and notice are such as to induce a man of reasonable prudence to understand that one parcel or kind of property only is to be taken, the tribunal would have no authority to order the appropriation of another and entirely different species or parcel of property from that indicated in the petition, resolution and notice. If, therefore, the appellants are right in their position that the city is seeking to appropriate property of an entirely different kind from that specified in the proceedings, then this appeal must be sustained.

The appellants are the owners of a mill, a dam and the usual mill privileges. The dam of which they are the owners has collected the water in a pond, or reservoir, and it is from this pond, or reservoir, that the city proposes to take the water. The collection of the water in the pond adds to its value to the city, inasmuch as it gives it a fall needed by the city to secure the necessary pressure, and this fall is due to the fact that the dam of the appellants has raised the water to an increased height of several feet above the natural level of the stream. The contention of counsel is that the water in the reservoir is thereby artificial provision and can not be taken or used.

The right which the appellants possess as mill owners is a mere easement; they did not acquire any property in the corpus of the water. Their right is the right to use the water for the propulsion of machinery, and it is nothing more. The law upon this question was well stated by Chief Justice Gibson, in Mayor, etc., v Commissioners, etc., 7 Pa. 348: "Now," said he, "a grant of water-power is not a grant of the water for anything else than the propulsion of machinery; and it consequently does not exclude the use of it by any one else, in a way which does not injure or decrease...