City of Huntington v. Kaufman

• Decision Date: 30 January 1912
• Docket Number: No. 7,483.,7,483.
• Citation: 97 N.E. 339,55 Ind.App. 341
• Parties: CITY OF HUNTINGTON v. KAUFMAN.
• Court: Indiana Appellate Court

55 Ind.App. 341

97 N.E. 339

CITY OF HUNTINGTON

v.KAUFMAN.

No. 7,483.¹

Appellate Court of Indiana, Division No. 2.

Jan. 30, 1912.

Appeal from Circuit Court, Huntington County; J. W. Adair, Special Judge.

Proceedings by the City of Huntington for the assessment of land for street improvements. From a judgment for Roscoe A. Kaufman, awarding damages to him in consequence of the street improvements, the city appeals. Affirmed.Wm. D. Hamer, for appellant. C. W. Watkins, R. A. Kaufman, and Chas. A. Butler, for appellee.

ADAMS, J.

Appellee was the owner of certain real estate in the city of Huntington, which was assessed for street improvements, and from which assessment appellee appealed to the Huntington circuit court. Issues were joined on the transcript of all the proceedings, and acts of the city, relative to the improvement, and the remonstrance of the appellee, who was the defendant below.

Upon request, the court made a special finding of facts, and stated conclusions of law thereon, from which finding it appears that on the 24th day of December, 1901, the common council of the city of Huntington passed a resolution for the improvement of North Jefferson street, in said city, by paving with vitrified brick to a width of 30 feet, and with sidewalk 6 feet wide on each side of the improved roadway. The real estate of the appellee was assessed, as benefited by the improvement, in the sum of $383.44. Notice of the assessment was given to the owners of the real estate affected, and appellee appeared and filed his remonstrance, alleging therein that his property was not benefited in any sum by the improvement, but that he was damaged thereby in the sum of $500. The assessment against the property of appellee was, on the 31st day of May, 1904, ratified, and ordered placed upon the tax duplicate. On June 1, 1904, appellee filed his bond, and took an appeal to the circuit court.

It is also found that the contractors, in constructing the work, made a cut into the property of the appellee 7 1/2 feet deep, 90 feet long, and 26 inches wide, immediately west of the west line of the street, destroying three large shade trees, all without right or authority of law; that the cutting of appellee's lot and grading of said street left the lot inaccessible, inconvenient, and did not increase the value thereof, but was an injury and damage to the same in the sum of $500; that the contract called for the construction of a 6-foot sidewalk for the full length of appellee's property, but that no sidewalk was ever built, and no excavation for a sidewalk was made and that said city, with full knowledge that no sidewalk had been built in front of the property of appellee, accepted said work from the contractors; that on the 15th of July, 1903, and after the cut was made on appellee's property, as aforesaid, and after appellee had suffered the loss of shade trees, as herein set out, he filed his complaint in the Huntington circuit court to enjoin the city from further cutting down his lot, and from further injuring his shade trees; that issues were duly joined on said complaint, and upon the hearing the city was enjoined from further cutting appellee's lot, and further injuring his shade trees, and judgment rendered in favor of appellee for nominal damages in the sum of $10, which judgment has not been set aside nor appealed from.

Upon these facts, the court stated, as conclusions of law, that the property of the appellee is not benefited by the improvement; that the same is damaged in the sum of $500; and that appellee should recover from the city the sum of $500, as damages. Exceptions were separately and severally taken by the city to each conclusion of law, and separately assigned as error on appeal. The assignment of errors also specifies the overruling of the motion for a venire de novo, and the overruling of the motion for a new trial.

[1] The errors predicated on each conclusion of law stated by the court are not well taken. For the purpose of determining this question, we must take the finding as not only speaking the truth, but the whole truth, in regard to the facts of the case. Appellant'sexceptions concede that the facts are not only correctly found, but are fully found. National State Bank v. Sandford Fork Co., 157 Ind. 10, 60 N. E. 699;Blair v. Curry, 150 Ind. 99, 46 N. E. 672, 49 N. E. 908;Warren v. Sohn, 112 Ind. 213, 13 N. E. 863;City of Indianapolis v. Board, 28 Ind. App. 319, 62 N. E. 715;Ladd v. Kuhn, 27 Ind. App. 535, 61 N. E. 747.

[2] The finding being clear and free from ambiguity, it follows that there was no error in overruling the motion for a venire de novo. This motion reaches matters of form, and can only be sustained when the finding is so defective and uncertain that no judgment can be rendered thereon. Zink v. Dick et al., 1 Ind. App. 269, 27 N. E. 622;Knight v. Knight, 6 Ind. App....