City of Evansville v. Follis, 1--1073A178

• Decision Date: 03 September 1974
• Docket Number: No. 1--1073A178,1--1073A178
• Parties: CITY OF EVANSVILLE, Indiana, Appellant (Defendant Below), v. C. Gene FOLLIS and Gertrude Follis, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 724

315 N.E.2d 724

161 Ind.App. 396

CITY OF EVANSVILLE, Indiana, Appellant (Defendant Below), v. C. Gene FOLLIS and Gertrude Follis, Appellees (Plaintiffs Below).

No. 1--1073A178.

Court of Appeals of Indiana, First District.

Sept. 3, 1974.

John C. Cox, Timothy R. Dodd, Cox, Schroeder, Dodd, Staser & Mitchell, Evansville, for appellant.

John D. Clouse, Evansville, for appellees.

LYBROOK, Judge.

Plaintiffs-appellees (Follis) obtained an injunction against the defendant-appellant (City) enjoining it from interfering with plaintiffs' construction of a certain improvements within the boundaries of the right-of-way of an Evansville city street.

Basically, City's appeal challenges the sufficiency of the evidence to support the judgment granting the injunction. Apellees respond by contending that the evidence supports recovery upon any one of the following theories: (1) Permissible Encroachment, (2) Waiver and (3) Estoppel.

Appellees resided upon certain real property owned by them at the corner of St. James and Bellemeade Streets in Evansville. In 1972 they employed Evansville Garage Builders and Master Remodelers (Builders) to construct a swimming pool and a surrounding brick wall in their back yard. John Tucker of Builders, after inspecting the site, took the construction plans to the Area Plan Commission Office and was issued a zoning permit. He then went to the Building Commissioner and obtained a building permit. When these permits were issued, neither the Plan Commission nor the Building Commission informed Tucker or Follis that the planned construction would encroach upon the Bellemeade Street right-of-way. Apparently none of the parties at this point were aware of the possible encroachment. The applications show that the swimming pool would be located 18 feet south of the north property line. Prior to the issuance of the permits, Ray Borman, Assistant Building Commissioner, and Tucker met at the job site and discussed the work. Borman later called Tucker who went to the Building Commissioner's office where he was then conducted to the City Engineer's office and introduced to a Mr. Berridge, who informed Tucker that as long as they stayed 65 feet back from St. James, they could construct a fence, suggesting that they move the fence back two feet from the sidewalk. Berridge further added that it didn't matter where the swimming pool was placed once the fence was up. Apparently no one from the engineer's office told Tucker that the proposed plan encroached upon the city's right-of-way.

When construction was 90 per-cent completed, a stopwork order was received from City. Follis and Builders then discovered that City owned a right-of-way extending 12 1/2 feet into the Follis' yard. A Mr. Ernspiger of the Building Commissioner's office stated that apparently that office had neglected to check property descriptions and width of setbacks before issuing the building permit.

The evidence at trial revealed that a portion of the wall and swimming pool was being constructed within the right-of-way owned by City although neither encroached upon the traveled portion of Bellemeade Street as it presently exists. The wall neither obstructs nor interfers with the vision of persons driving upon either Bellemeade or St. James Street.

Follis petitioned the Board of Public Works to vacate City's right-of-way. From the denial of their petition, Follis appealed. Their amended complaint requested that City be enjoined from interfering with improvements constructed on their property which would encroach upon City's right-of-way for so long as the City was not using the right-of-way.

After trial, the court found that the building permit issued to plaintiffs was legally issued by the authorities and agents of the City of Evansville, that plaintiffs would be permitted to maintain the structures until such time as the right-of-way is needed by the City of Evansville, that plaintiffs were ordered to pay the sum of $3,000 for the use of the right-of-way until such time as it becomes necessary to build capital improvements thereon, and in the event the city widens Bellemeade Avenue, the above sum was to be used to remove the improvements referred to. Finally the court enjoined the defendant city from 'interfering with the completion of the improvements under construction on plaintiffs' real estate for so long as said defendant does not need said right-of-way for the purpose (sic) of making capital improvements.'

City argues that the injunction cannot stand, concluding that the trial court grounded its judgment upon the doctrine of estoppel. City contends that this doctrine is inapplicable under the evidence because of the absence of knowing misrepresentation on the part of the City.

However, in reviewing this case we are mindful of the proposition that if the judgment can be sustained on any theory presented by the issue, we must affirm.

In Indiana & Michigan Electric Co. v. Schnuck (1973), Ind., 298 N.E.2d 436, the court said:

'. . . A general judgment is presumed to be based upon findings supported by the evidence. Gilot v. Walsh (1968), 142 Ind.App. 628, 236 N.E.2d 607. Here, no request was made for special findings so the finding must be treated as general, and if the action of the trial court is sustainable on any theory, it must be affirmed. (Citations omitted).'

In Oxford Development Corp. v. Rausauer, Builders, Inc. (1973), Ind.App., 304 N.E.2d 211, this court observed:

'. . . we are mindful that our standard of review requires affirmance of a judgment if it can be sustained on any theory presented by the issues. * * * Further, all reasonable presumptions are indulged in favor of the trial court, and this court will make no presumptions in favor of an appellant to sustain any alleged error. * * *' (Citations omitted).

We shall therefore proceed to examine this cause in the light of each of the theories suggested by appellees, to-wit: (1) Permissible Encroachment, (2) Waiver and (3) Estoppel.

I. Permissible Encroachment

The evidence revealed that plaintiffs' proposed swimming pool and wall, while located in their yard, encroached upon City's right-of-way. However, it was further shown that the proposed improvements were not located within the traveled portion of the street. Neither did they obstruct the vision of drivers upon the street nor did they interfere in any way with the City's use of its right-of-way as presently located.

In Town of Ogden Denes v. Wildermuth (1968), 142 Ind.App. 379, 235 N.E.2d 73, the Town had sued the landowners to abate a nuisance which consisted of a wooden fence located within the right-of-way of a public street. The trial court decided the issues adversely to the town which appealed, relying heavily upon Steele v. Fowler (1942), 111 Ind.App. 364, 41 N.E.2d 678, and other cases. In Steele a landowner had been denied an injunction when he attempted to enjoin the City of Princeton from entering onto a portion of a street right-of-way and removing a concrete wall which had been constructed by landowner. In Town of Ogden Dunes, supra, the court distinguished Steele and other authorities cited by Town on the basis that in the cases cited the obstructions were either in the traveled portions of the highway or were permanent in nature. In Town of Ogden Dunes, this court said:

'In the case at bar there was ample evidence upon which the trial court could have based its decision that the fence in question did not prevent vehicles from using the complete paved portion of the abutting street.

'It is our opinion that even if there had been an affirmative finding that the fence was in the right-of-way of Skyline Drive, an abutting land owner has the right to make any reasonable use of the highway which does not interfere with the enjoyment of...