Burridge v. City of Mishawaka

• Decision Date: 18 November 1947
• Docket Number: 17645.
• Parties: BURRIDGE et al. v. CITY OF MISHAWAKA et al.
• Court: Indiana Appellate Court

75 N.E.2d 560

BURRIDGE et al. v. CITY OF MISHAWAKA et al.

No. 17645.

Appellate Court of Indiana, in Banc.

November 18, 1947

Appeal from Superior Court, No. 1, St. Joseph County; J. Fred Bingham, Judge.

Charles Davis, of Mishawaka, for appellant.

Robert P. Lang and Farabaugh, Pettingill, Chapleau & Roper, all of South Bend, for appellee.

HAMILTON Judge.

This is an appeal from an adverse judgment in an action by appellants against the City of Mishawaka, Indiana, to annul and vacate certain proceedings taken by the board of public works of said city to vacate and close Somerset Avenue where the same crosses the right of way and tracks of the New York Central Railroad Company, which company, upon its petition, was permitted to intervene and was made a party defendant in said action.

The issues were formed by appellants' complaint in one paragraph, to which the defendants filed a demurrer for want of sufficient facts to state a cause of action.

The court sustained the appellees' demurrer and upon appellants' refusal to plead further final judgment was rendered for appellees and against appellants to the effect that appellants take nothing by their complaint and that appellees recover their costs.

The only error assigned for reversal is that the court erred in sustaining appellees' demurrer to appellants' complaint. The complaint, omitting caption and signatures reads as follows:

'Plaintiffs complain of defendant and allege:

'1. That on the 4th day of December, 1944, the Board of Public Works of the City of Mishawaka, Indiana, hereinafter called the Board entered into an agreement with the New York Central Railroad Company, hereinafter called the Railroad, whereby it unlawfully agreed with said Railroad to vacate and close Somerset Avenue where the same crosses said Railroad Company's Main Line Right-of-Way in said City, without cost to said Railroad and without assessing its property for any benefits derived by it from the vacation of said street.

'2. That thereafter, on the 15th day of April, 1946, acting pursuant to and by virtue of said contract and unlawful agreement with said Railroad, said Board adopted the Vacation Resolution No. 2, whereby it declared that it was desirable to vacate Somerset Avenue across the right-of-way of said Railroad in said City, described as follows: Beginning at the South East Corner of Lot No. 13 in Miller's First Addition of Floral Park of the City of Mishawaka, Indiana; thence East Eighty (80) feet; thence South to the South line of the New York Central's right-of-way; thence West Eighty (80) feet; thence North to the place of beginning.

'3. That said Board by its said resolution declared that the following described real estate in the City of Mishawaka, Indiana, would be injuriously affected by the proposed vacation of said street, to-wit: Lots Numbered 12-13, Miller's 1st Addition of Floral Park Addition and Lots Numbered 7-8-9-10-11-12-31-32-34-35 and 36 in Floral Park Addition, all in the City of Mishawaka, Indiana; and that the following real estate in the City of Mishawaka, Indiana, would be benefited by the proposed vacation of said street, to-wit: Beginning on the North Line of the New York Central Railway's Right-of-way at the East line of Berlin Avenue; thence East along the North Line of said right-of-way to the West line of Grand Blvd; thence South to the South Line of said right-of-way; thence North to the place of beginning; and said Board fixed May 6, 1946, as the day for hearing on said resolution.

'4. That on the 6th day of May, 1946, pursuant to its contract with said Railroad, said Board confirmed said resolution adopted by it on April 15, 1946.

'5. That notwithstanding the fact that said Board had determined that said Railroad's land would be benefited by the vacation of and the closing of said Somerset Avenue, as aforesaid, and that the other real estate above described would be injuriously affected by such vacation, said Board acting pursuant to its unlawful agreement with said Railroad, refused to assess the land of said Railroad with the amount it was benefited, or with any amount, and it refused to allow any damages to any of those whose lands were injuriously affected by said vacation of said Avenue; and that said Board, acting pursuant to its unlawful contract, ordered the cost of making said vacation of and closing of said Avenue paid out of the general fund of said City.

'6. That plaintiffs are the owners of the following described real estate in St. Joseph County, State of Indiana, to-wit: The North Half (1/2) of Lots Numbered 34 and 35 as shown on the recorded Plat of Floral Park, an addition to the City of Mishawaka, Indiana; and that said Lots are a part of the real estate mentioned in said resolution as being injuriously affected by the proposed vacation of Somerset Avenue.

'7. That the plaintiffs will be damaged in the sum of not less than One Thousand ($1000.00) Dollars by the vacation and closing of Somerset Avenue where the same crosses said Railroad's right-of-way which is proposed and done pursuant to Vacation Resolution No. 2 adopted by said Board on the 15th day of April, 1946, and confirmed by said Board on the 6th day of May, 1946.

'8. That said Railroad will be benefited in a large sum of money by the vacation and closing of Somerset Avenue, where the same crosses its right-of-way.

'9. That all of said proceedings taken and had towards the vacation of Somerset Avenue, as aforesaid, were taken and had by said Board pursuant to its unlawful contract and agreement with said Railroad.

'Wherefore, plaintiffs pray the Court that it be adjudged and declared that all the proceedings taken by said Board, pursuant to its unlawful contract with said Railroad, he declared to be void and of no effect or purpose whatsoever and that the proceedings taken by said Board for the vacation and closing of Somerset Avenue be vacated, annulled, and set aside, and for all other proper relief in the premises.'

The memorandum attached to the demurrer for insufficient facts to constitute a cause of action assigns the following reasons, to wit:

'The complaint does not contain any facts showing any defects or irregularities in the proceedings with respect to which the plaintiffs did not have the right to be heard and remonstrate and have their rights fully protected by the filing of a remonstrance and, if dissatisfied, by thereafter appealing. (Burns' §§ 48-2001 to 48-2010). The complaint on its face shows that the time for filing a remonstrance has expired and that plaintiffs have thus waived the right to be heard. It appears on the face of the complaint that this is a collateral attack on the proceedings of the Board of Works and such is not permitted as the statutes provide for proper proceedings for remonstrating and appeal.

'The complaint does not contain any facts which show that plaintiffs suffer any injury or damage different than that which is suffered by the public in general.

'There are no facts alleged in the complaint showing that the power vested in the City of Mishawaka to vacate streets has not been exercised according to law.

No facts are alleged in the complaint showing a cause of action against the defendants, or either of them.'

Appellants' contention is based upon the sole proposition that the agreement referred to in rhetorical paragraph 1 of their complaint alleged to have been entered into by and between the board of public works of the City of Mishawaka, Indiana, and the New York Central Railroad Company, whereby the board of public works agreed to vacate and close Somerset Avenue where the same crosses said railroad company's right of way in said city, without cost to said railroad company and without assessing its property for the benefits derived by it from vacating said public highway was unlawful and void, and therefore all the proceedings taken by the board of public works in vacating said street were null and void; that it was not necessary to allege fraud or facts showing that the board of public works had failed in any manner to comply with the statutory procedure governing the vacation of public streets.

It is conceded that the legislature, by the enactment of §§ 48-2001 to 48-2010, inclusive, Burns' 1933, has vested in the board of public works of appellee city of Mishawaka the exclusive power to open, change, lay out, or vacate any street, alley, or public place within the corporate limits of said city and that said sections of the statute prescribe the method of procedure to be followed by the board of public works in all such cases.

Under the provisions of § 48-2001, in order to legally vacate Somerset Avenue, appellee board of public works was required to adopt a resolution to that effect, describing the property which may be injuriously or beneficially affected and give notice of such resolution in a newspaper once each week for two consecutive weeks. Such notice was required to name a date at which the board would receive or hear remonstrances from persons interested in or affected by such proceedings. The board was required to consider such remonstrances, if any, and thereupon take final action confirming, modifying or rescinding its original resolution, ' which action shall be final and conclusive on all persons.' (Our emphasis.)

Section 48-2002 requires that, upon the final order being made as provided in§ 48-2001, the board shall cause to be prepared a list or roll of all the owners or holders of property to be affected by such work, either beneficially or injuriously.

Section 48-2003 provides that, upon the completion on the list of property owners, the board shall proceed to award the damages sustained and to assess the benefits accrued to each place of property on the list. When the...