City of Jeffersonville v. Myers

• Citation: 2 Ind.App. 532,28 N.E. 999
• Parties: City of Jeffersonville v. Myers et al.
• Decision Date: 27 October 1891
• Court: Court of Appeals of Indiana

2 Ind.App. 532

28 N.E. 999

City of Jeffersonville

v.Myers et al.

Appellate Court of Indiana.

Oct. 27, 1891.

Appeal from circuit court, Clark county; O. P. Furguson, Judge.

Action by Charles H. Myers and Peter F. Myers against the city of Jeffersonville, Michael Nolan, and Joseph Coyne for injury to real estate. Plaintiffs obtained judgment against the city, and it appeals. Affirmed.

M. Z. Stannard and F. B. Burke, for appellant. J. K. Marsh, for appellees.

BLACK, J.

The appellees, Charles H. Myers and Peter F. Myers, sued the appellant and Michael Nolan and Joseph Coyne. Issues were formed, which were tried by a jury, the verdict being in favor of the defendants Nolan and Coyne, and against the appellant, for $600.

The first question presented here relates to the action of the court in overruling the appellant's demurrer to the complaint, in which it was alleged, in substance, that the appellees at the commencement of the action, in December, 1886, were, and for 16 years prior thereto had been, the owners in fee-simple and in possession of two certain lots, described, in the city of Jeffersonville, which lots abut upon a public street of said city named “Market Street,” of the width of 60 feet, the grade of which street was duly and legally established by the proper city authorities of said city on the 10th of July, 1870; that after the grade of said street was so established where said lots abut the same, and before the wrongful acts and doings of the defendants hereinafter set forth, the appellees from time to time made lasting and valuable improvements on said lots, consisting of houses, out-houses, fences, and sidewalks constructed, and shade-trees planted, all with a view to said established grade of said street, and in accordance therewith; that on the 20th of September, 1885, the defendants wrongfully and unlawfully constructed, and caused to be constructed, an embankment of earth, stone, and gravel, in, upon, and along that portion of said street, and the full width thereof, including sidewalk in front of said lots, and upon which the same abut, and to the full width, 73 feet, of said lots, said embankment varying in height from 3 to 20 feet above the established grade of said street; that, in putting and constructing said embankment as aforesaid, defendants wrongfully and unlawfully tore up and destroyed the sidewalk and fences theretofore constructed by the appellees upon said lots adjoining the same, and so filled and piled up the earth, gravel, stone, and brick about the shade trees theretofore planted along said sidewalk by appellees as to greatly injure all and destroy and kill four of said trees; that before said embankment was so constructed said lots were on a level, or nearly so, with the established grade of said street, and the egress from and ingress to said lots were free, easy, convenient, and unobstructed, and said lots were shapely, attractive, and desirable, and the drainage thereof was good, but by said embankment constructed as aforesaid, and varying in height from 3 to 20 feet above the level of said lots, egress therefrom and ingress thereto are materially and seriously obstructed, and the use, enjoyment, and possession of said lots are greatly interfered with and lessened, and the value thereof is seriously impaired; that, in order to go into and come out of said lots on said street, it is necessary to ascend and descend said embankment at great and constant inconvenience and annoyance; that said embankment seriously interferes with and obstructs the drainage of said lots, and causes the waters to gather and stand in said lots, to their annoyance and injury, and to the depreciation of their value; that said embankment mars and ill shapes said lots, and militates against the salability thereof, and greatly damages the same; that, by reason of the wrongful acts of the defendants as herein set forth, the appellees have sustained damages in the sum of $2,000, which damages are due and wholly unpaid. Wherefore, etc.

It is contended on behalf of the appellant that the complaint is defective because of the want of an allegation that the alleged wrongful action of the city was authorized by its common council. We think this objection, which is the only one urged against the complaint, is not well taken. It is alleged that the defendants wrongfully and unlawfully constructed, and caused to be constructed, the embankment, etc. This, we think, was sufficient to withstand the city's demurrer for want of sufficient facts.

It is next contended that the court erred in overruling the appellant's motion for a new trial, and the appellant insists that the verdict was not sustained by sufficient evidence, and that the court erred in its instructions numbered 5, 7, and 10. The evidence showed that the appellees jointly owned and occupied two lots as alleged in the complaint, abutting upon the north side of Market street, the establishment of the grade of that street, and the making of improvement on the lots subsequent to the establishment of the grade as alleged. Concerning the subsequent change in the grade, the evidence showed that in October, 1884, the city of Jeffersonville, by ordinance of its common council, granted to the United States, “for the purpose of erecting, building, constructing, and perpetually maintaining a levee at said city, or the improvement of the navigation of the Ohio river and the protection of the government property thereat, and the approaches thereto, a right of way over” certain streets, alleys, and grounds of said city. The course of the levee described in the ordinance crossed said Market...