City of Muncie v. Pizza Hut of Muncie, Inc.

• Decision Date: 07 December 1976
• Docket Number: No. 2--275A23,2--275A23
• Citation: 171 Ind.App. 397,357 N.E.2d 735
• Parties: The CITY OF MUNCIE, Indiana, Appellant (Defendant below), v. PIZZA HUT OF MUNCIE, INC, and Aus-Whit, Inc., Appellees (Plaintiffs below). . 1
• Court: Indiana Appellate Court

Page 735

357 N.E.2d 735

171 Ind.App. 397

The CITY OF MUNCIE, Indiana, Appellant (Defendant below), v. PIZZA HUT OF MUNCIE, INC, and Aus-Whit, Inc., Appellees (Plaintiffs below).

No. 2--275A23.

Court of Appeals of Indiana, First District. ¹

Dec. 7, 1976.

David S. Wallace, Warner, Peckinpaugh & Warner, Muncie, for appellant.

Sidney E. McClellan, Muncie, for appellees.

LYBROOK, Judge.

The City of Muncie, Indiana, defendant-appellant, appeals from being permanently enjoined and restrained from denying to the plaintiffs the way of ingress and egress to and from their property abutting New York Avenue, and from obstructing such ingress and egress. Appellant raises the following issues for review:

(1) Whether the court erred in mandating the City to allow ingress and egress to plaintiffs' property, absent a finding that the City was abusing its police power?

(2) Whether the plaintiffs had an adequate remedy at law, i.e. inverse condemnation, and were therefore not entitled to injunctive relief?

The record reveals that plaintiffs-appelless, Pizza Hut of Muncie, Inc., and Aus-Whit, Inc. each own a parcel of commercial property in Muncie. The properties front on Wheeling Avenue, a public street in Muncie, and also have access from the rear of the properties to New York Avenue, another public street which dead ends into the rear of Aus-Whit, Inc.'s property. City, acting on complaints from persons residing on New York Avenue, erected barricades in such a manner as to completely cut off all vehicular traffic between the plaintiffs' property and New York Avenue. From a granting of an injunction restraining the action of the City, it appeals.

I

The first issue for our consideration is whether the court erred in mandating the City to allow ingress and egress to plaintiffs' properties, and if such injunction was proper absent a finding that the City was abusing its police power. Whether to grant or deny an injunction rests within the trial court's sound discretion and unless it can be shown that the decision of the trial court was arbitrary or an abuse of discretion the court's judgment will not be disturbed. Weis v. Cox (1933), 205 Ind. 43, 185 N.E. 631; Johnson v. Northwestern School Corp. (1976), Ind.App., 352 N.E.2d 531. The power of courts to issue injunctions is generally limited to the protection of civil rights and property rights. Department of Insurance v. Motors Ins. Corp. (1956), 236 Ind. 1, 138 N.E.2d 157.

'It is settled law in this state that the owner of a lot abutting upon a street may have a peculiar and distinct interest in the easement in the street in front of his lot. This interest includes the right to have the street kept open and free from any obstruction which prevents or materially interferes with the ordinary means of ingress and egress to and from his lot. This is an interest distinct from that possessed by the general public and is a right appendant to the lot and the improvements thereon. Such means of ingress and egress are as much property as the lot itself. . . .' (Emphasis added). Decker v. The Evansville Suburban & Newburgh Railway Company (1892), 133 Ind. 493, 33 N.E. 349.

It is clear that the right to ingress and egress from a public street to private property is the type of interest that may be protected by the issuance of an injunction. Our issue now becomes the determination of the effect of the municipal police power upon the property right.

'Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, . . .' Chicago, etc. R. Co. v. Anderson (1914), 182 Ind. 140, 105 N.E. 49.

In the exercise of police power a sovereignty may even encroach upon the rights of its citizens. Weisenberger v. State (1930), 202 Ind. 424, 175 N.E. 238.

'. . . While the state, in the exercise of this power, may subject persons and property to all kinds of restraints and burdens, even to an encroachment upon the natural rights of the citizen, yet, where it manifestly appears that the action of the Legislature is not supported by any reason, and is purely arbitrary, thereby invading property rights of an individual, . . . courts may look to the character and reasonableness of the limitation for the purpose of determining whether or not it reaches beyond the scope of necessary protection and prevention. In other words, 'they will pass upon the question whether such act has a substantial relation to the police power.' People v. Weiner (1915), 271 Ill. 74, 78, 110 N.E. 870, 872, L.R.A.1916C, 775, Ann. Cas.1917C, 1065.' (Emphasis added). Weisenberger, supra.

In the case at bar we do not find evidence in the record revealing that this police action was ...