Byer v. Town of New Castle

• Decision Date: 26 May 1890
• Citation: 124 Ind. 86,24 N.E. 578
• Parties: Byer v. Town of New Castle et al.
• Court: Indiana Supreme Court

124 Ind. 86

24 N.E. 578

Byer

v.Town of New Castle et al.

Supreme Court of Indiana.

May 26, 1890.

Appeal from circuit court, Henry county; M. E. Forkner, Judge.

Hernley & Brown, for appellant. J. H. Mellett, for appellees.

Mitchell, J.

Byers instituted this proceeding for the purpose of enjoining the town of New Castle from opening a new street over certain real estate owned by him. It is conceded that the record of the board of trustees shows that a proper petition praying for the opening of the street was filed; that commissioners were duly appointed to assess benefits and damages; and that the commissioners made and filed their report with the town-clerk, as required by the statute. The record, however, failed to show that the board accepted the report within 20 days, or that any further action was taken by that body in respect to opening the street. The court permitted the town to prove by parol that the board of trustees accepted the report within the time prescribed, and that it determined to make the appropriation of the land therein described The propriety of this ruling is called into question. It is undoubtedly true, where one has been induced to perform work or expend money on the faith of the proceedings of a board of trustees or common council, that the municipality may be estopped, after receiving the benefit of the work, to say that the evidence of the proceedings was not properly procured. In cases of that character, it is always competent, in the absence of a record, to show by parol that the work was duly authorized by contract or resolution, or that the money was expended in pursuance of proceedings actually taken, but not entered upon the records of the corporation. City of Logansport v. Dykeman, 116 Ind. 15, 17 N. E. Rep. 587, and cases cited. The rights of third persons, who acted in good faith, in reliance upon the proceedings of a corporate board, cannot be prejudiced by the default or neglect of the officers of the corporation who fail to keep a proper record of its acts or proceedings. City of Troy v. Railroad Co., 13 Kan. 70. In like manner, where a third person has actually received benefit or consideration which resulted from the proceedings of a board of trustees, he may be estopped to deny the regularity of the proceedings while retaining the consideration, on the ground that they were not properly entered of record. Where, however, an attempt is made to appropriate the property of one individual, the...