City of Anderson v. Bain

• Decision Date: 08 October 1889
• Parties: City of Anderson v. Bain.
• Court: Indiana Supreme Court

120 Ind. 254

22 N.E. 323

City of Anderson

v.Bain.

Supreme Court of Indiana.

Oct. 8, 1889.

Appeal from circuit court, Madison county; D. Moss, Judge.

Eli B. Goodykoontz, and Frank P. Foster, for appellant. Henry & Ryan, for appellee.

Olds, J.

The appellee was the owner of lot No. 11, in T. N. Still well's Second addition to the city of Anderson. Said lot fronted south on Canal street. There was an alley 14 feet wide along the north end of said lot; also an alley 14 feet wide running along the entire length of said lot on the west side thereof. Said Canal street, and the alleys running along and beyond said lots, had been laid out and dedicated to the public use long before the acts and damages complained of in this case. The city of Anderson owned a strip of ground, 40 feet in width, adjacent to and along the west side of the alley, which ran along the west side of the said lot owned by the appellee, extending the entire length of said lot, and beyond the same, both north and south; said 40-foot strip owned by the city extending from Williams street, a street running east and west, one-half block north of appellee's lot, to Lane street, a street running east and west, one block south of Canal street. On the 6th day of April, 1885, the common council of the city of Anderson passed an ordinance for the opening, grading, and graveling of a new street 54 feet in width, extending from Williams street to Lane street, two blocks in length, and crossing Canal street at the south-west corner of appellee's lot, which new street was located upon and included said 14-foot alley on the west of appellee's lot, and the 40-foot strip owned by the city as aforesaid, and designated said new street as “School Street.” Said city then gave notice that they would receive bids for the opening, grading, and graveling of said street, and, in pursuance of such notice, contracted with one John Green to open, grade, and gravel said street in accordance with plans and specifications adopted by the common council, and said Green commenced the said work in the summer of 1885, and completed it during that year. This action is brought to recover damages to the appellee's property, the lot aforesaid. The cause was put at issue, and there was a trial, resulting in a judgment in favor of the appellee. The errors assigned are: (1) That “the complaint does not state facts sufficient to constitute a cause of action.” (2) “The court erred in overruling the demurrer to the complaint.” (3) “The court erred in sustaining the demurrer to the second paragraph of answer.” (4) “The court erred in overruling the motion for new trial.” (5) “The court erred in overruling the motion in arrest of judgment.”

The complaint alleges that the plaintiff is the owner of the lot, (describing it,) upon which there are now, and for more than two years have been, valuable buildings, consisting of a two-story dwelling-house, a wood-house, and other out-buildings, which lot abuts and adjoins on the west side thereof its entire length 144 feet along a public alley 14 feet wide, which alley was laid out and dedicated to the public use as a part of said “Stillwell's Second Addition.” That on the 6th day of April, 1885, said defendant, by its common council, pretended to pass, enact, and adopt an ordinance for the opening, grading, and graveling of a new street within the corporate limits of the city, designated as “School Street,” (describing the street,) stating that the west line of plaintiff's lot constituted the east line of said new street. That the plaintiff's wood-house upon said lot is situate upon the west line of said lot, and abuts upon said street, and that her stable upon said lot is situate upon the alley on the rear of said lot. That after the passage of said ordinance, and in pursuance of the terms thereof, said city, by its common council, undertook to and did enter into a written agreement and contract with one John Green for the building, digging, constructing, and making said new street according to the terms of said ordinance, contract, and specifications of the city civil engineer of said city. That said Green, pursuant to the terms of said agreement, proceeded to and did make and construct said street according to the said ordinance, specifications, and agreement with said city; all of which was done without having referred said matter to the city commissioners of said city, whose duty it was and who might meet and examine the property sought to be appropriated, and to view and examine the real estate, in the vicinity of said new street, that might be benefited or injured by the construction of said proposed new street, and that they might estimate the damages and injuries to the property and real estate injuriously affected by such improvement, and permit any person so injured and damaged to appear before such commissioners, and show and prove to them any damages sustained. By reason of which failure to so refer said matter of said proposed street to said board of city commissioners, the appellee was wholly deprived of her right and privilege of having her damages assessed for said improvements, and of appearing before said commissioners, and showing and proving any damage she might show herself entitled to by reason of said proposed street. That in the construction of said new street, as aforesaid, said contractor of said city, as aforesaid, cut down plaintiff's said lot the entire length thereof on the west side thereof to the depth of two feet, and cut...