Brokaw v. City of Terre Haute

• Decision Date: 09 October 1884
• Docket Number: 11,577
• Citation: 97 Ind. 451
• Parties: Brokaw v. The City of Terre Haute
• Court: Indiana Supreme Court

97 Ind. 451

Brokaw v. The City of Terre Haute

No. 11,577

Supreme Court of Indiana

October 9, 1884

From the Superior Court of Vigo County.

J. T Scott, for appellant.

H. C Pugh and G. E. Pugh, for appellee.

OPINION

Colerick C.

This was a proceeding by the appellee to open and widen Moffatt street in the city of Terre Haute, Indiana. The city commissioners, by virtue of the statute under which they acted, R. S. 1881, section 3166, etc., found and determined that certain real estate of the appellant would be damaged by the widening and opening of the street in the sum of $ 2,400, and that the benefits which it would derive therefrom would amount to a like sum, and made their report to that effect to the common council, who approved the same, and thereupon the appellant, being affected by the proceedings, appealed therefrom to the superior court of Vigo county, where the same was tried by a jury, who returned a verdict in favor of the appellant, assessing his damages at $ 1,500. After the rendition of the verdict, and before any action had been taken thereon, the appellee, having paid all the costs, moved the court "for leave to dismiss and discontinue the proceedings to open the street in controversy," which motion was resisted by the appellant, who, in support of his opposition thereto, presented and filed his affidavit, which is made a part of the record in this case, in which it was stated that after the street had been ordered by the common council to be opened, and after the appellant had taken and perfected his appeal, and while the same was pending, the appellee elected to open the street, and, accordingly, caused a precept to be issued to the city marshal, directing him to open the same, and that said marshal, armed with said precept as his authority therefor, proceeded to open it, and threatened to tear down, for that purpose, the fences of the appellant, who, to avoid the exposure to which his property would have been thereby subjected, obtained permission of the marshal to remove his fences a distance of thirty feet, so as to leave the street open as required by the appellee, and that he was compelled to do so in order to save the balance of his property from irreparable damage; and that the removal of the fences had cost him $ 45; and that the grass and trees growing on the place so opened for the street had been irreparably injured by being exposed to the street, etc. The motion to discontinue the proceedings was sustained by the court, to which ruling the appellant excepted, and it constitutes the only error assigned.

The sole question presented for our consideration is, was the appellee precluded from discontinuing the proceedings by its act of opening the street in controversy before the final determination of the appeal? The statute, which authorized the appeal, provides, "but such appeals shall not prevent such city from proceeding with the proposed appropriation, nor from making the proposed change or improvement." R. S. 1881, section 3180. It, also, further provides, "If upon appeal, the report of the commissioners as to the benefits or damages be greatly diminished or increased, the city may, upon payment of all costs, discontinue such proceedings."

Although the appellee, in the exercise of the power granted to it by the first provision of the statute above cited, widened and opened the street during the pendency of the appeal, it was not, in our opinion, precluded thereby from subsequently abandoning the same, and discontinuing the proceedings which were still pending, upon ascertaining that the amount of the damages awarded to the appellant, on his appeal, greatly exceeded the sum that was assessed in his favor by the city commissioners. The results that legally flowed from the action of the...