City of Tell City v. Bielefeld

• Decision Date: 08 April 1898
• Docket Number: 2,461
• Citation: 49 N.E. 1090,20 Ind.App. 1
• Parties: CITY OF TELL CITY ET AL. v. BIELEFELD
• Court: Indiana Appellate Court

49 N.E. 1090

20 Ind.App. 1

CITY OF TELL CITY ET AL. v. BIELEFELD

No. 2,461

Court of Appeals of Indiana

April 8, 1898

From the Perry Circuit Court.

Reversed.

Patrick & Minor, C. H. Jewett and H. E. Jewett, for appellants.

W. A Land, for appellee.

OPINION

HENLEY, J.

Appellee began this action against appellants, the city of Tell City Fred Fruchwald, marshal of the city of Tell City, and Jacob Froelich, street commissioner of the city of Tell City, by a complaint in one paragraph in which the following facts are stated: That in the year 1887, the city of Tell City granted to appellee a license, for a valuable consideration, to construct, erect and put down Fairbank scales on the west side of Ninth street between Mozart and Jefferson streets in said city, which scales were to be used by appellee for public and private purposes. That in pursuance of the license granted as aforesaid, appellee did construct and erect scales at the aforesaid point in the streets of said city at an expense to him of $ 260.00; that the license to appellee so to erect such scales at said point was duly ordered and entered of record at a regular meeting of the city council of said city, and appellee in good faith constructed and maintained said scales in good order and repair at his own expense from the year 1887 until the 10th day of April, 1895, when the marshal and street commissioner of said city, under the orders and direction of said city, and against the protest and objection of the appellee, took down and removed said scales, over the protest and objection of appellee, and without paying or offering to pay appellee therefor, and that by reason of the acts aforesaid appellee has suffered damages in the sum of $ 5,000.00. A demurrer to the complaint, for want of sufficient facts, was overruled. The appellant answered in four paragraphs, first the general denial, the second, third, and fourth were special pleas in bar. To this answer a demurrer in the following language was addressed: "The plaintiff demurs to defendant's answer for the reason that said answer does not state facts sufficient to constitute a good answer to plaintiff's complaint." There was a trial by the court and judgment for appellee in the sum of $ 265.00.

It is contended by counsel for appellant that the lower court erred in overruling the demurrer to the complaint. Appellant's contention must be sustained. A city has no power to authorize the construction of anything upon the public highways within the city, which when constructed will permanently interfere with the enjoyment of the rights of either the public or a private person. Pettis v. Johnson, 56 Ind. 139; Adams v. Ohio Falls Car Co., 131 Ind. 375, 31 N.E. 57. Public streets are public highways, and include within their width the sidewalks. Public highways are the property of the public, and belong to the public from side to side, and from end to end. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. A municipal corporation is a corporation of limited powers, and persons dealing with such corporations must take notice of the limitations the law imposes upon them.

The case of City of Richmond v. Smith, 148 Ind 294, 47 N.E. 630, we think decisive of the question involved in the case at bar. In the last named case it was held by the Supreme Court that under section 3541, Burns' R. S. 1894, which gives to cities the power to establish and regulate public markets, the city did not have the right to establish such markets in the streets of the city. The Supreme Court in that case, speaking by Howard, J., say: "The streets are primarily for the use of the traveling public. Certain other uses...