City of Terre Haute v. Mack

• Decision Date: 16 October 1894
• Citation: 139 Ind. 99,38 N.E. 468
• Parties: CITY OF TERRE HAUTE et al. v. MACK.
• Court: Indiana Supreme Court

139 Ind. 99

38 N.E. 468

CITY OF TERRE HAUTE et al.

v.MACK.

Supreme Court of Indiana.

Oct. 16, 1894.

Appeal from circuit court, Vermillion county; A. F. White, Judge.

Action by Amanda D. Mack against the city of Terre Haute and others for an injunction. Judgment for plaintiff. Defendants appeal. Affirmed.

P. M. Foley, J. Foley, and Davis, Reynolds & Davis, for appellants. Mack, Henry & Crane, for appellee.

McCABE, J.

The appellant the city of Terre Haute improved a portion of Fifth street, in said city, from Maine street south. Appellants Voorhees and Grimes were the contractors. Appellee owns real estate within 50 feet back from the street improved. It is in Blake's subdivision, a platted portion of said city, consisting of a series of lots fronting on Maine street or Wabash avenue to the north, and running back south to an alley, 138 feet. The lots are numbered consecutively, beginning on the west with No. 1, lying side by side, continuing on east to No. 16, on Sixth street. Lot No. 1, owned by Hudson, lying its whole length east of, next to, and bordering on said Fifth street, was 19 feet wide; lot No. 2, owned by Froeb and Morgan, lies east of and next to said lot No. 1, and is 18.6 feet wide; and lot No. 3, owned by appellee, lies east of and next to said lot No. 2, and is also 18.6 feet wide. Consequently, a strip of 12.4 feet wide on the west side of lot No. 3 is within 50 feet back from said improved street, but no part of lot 3 borders, abuts, or touches on Fifth street. All the lots front to the north on Wabash avenue or Maine street. Lot 1, lying next to and bordering on Fifth street, is worth $16,000, and all three lots have three-story brick buildings on them. After the work had been completed in a manner satisfactory to all, it was accepted by the city; and, to enable the contractors to collect pay for the same, the city had the engineer make assessments to pay the contractors, and, instead of assessing the cost of paving Fifth street along lot 1, bordering on and adjoining the same, assessed also lot 2 and a strip 12.4 feet wide on the west side of plaintiff's lot 3, making the assessment extend back for a distance of 50 feet from said improved street; and the city is about to issue her certificate to said defendants, the contractors, ordering them to enforce collection by the sale of plaintiff's property. The foregoing are the facts substantially alleged in the complaint. It is further alleged that said assessment is without right, and a cloud on plaintiff's title, and said defendants, contractors, are seeking to get said certificate to enforce its collection. Prayer that defendants be enjoined from issuing said certificate and collecting said illegal assessment, and for general relief. The answer of the city sets up substantially the same facts, and, in addition thereto, that the common council, on the 7th of November, 1893, ordered the city engineer to prepare a first and final estimate in favor of said contractors for said improvement. That on November 29, 1893, said engineer reported an estimate in favor of said contractors for said improvement, against the property owners benefited thereby, and, among others, the following, to wit: Mary V. Hudson, on a strip or lot of ground adjoining said Fifth street, 138 feet along said street, 19 feet wide, the sum of $297.06; Foeb and Morgan, the same length, parallel with said street, 18.6 feet wide, adjoining the lot just mentioned, $272.10; and Amanda D. Mack, a strip or lot the same length, parallel with said street, adjoining the last-described strip, and 12.4 feet wide, $161.05,-said strips or lots being said lots 1, 2, and 12.4 feet off the west side of lot 3, all being within 50 feet of the east side of said Fifth street and said improvement; and a plat thereof is made an exhibit. That said estimates of the costs of said improvements so made and reported were made by said city engineer according to the whole length of the street so improved per running foot and said lots being platted; and upon the proper notice being given for hearing objections to such assessments, and there being no objections, the common council, on the 29th day of December, 1893, that being the time specified in the notice, approved and confirmed said report and assessment, and did assess against plaintiff's said lot, as its proportion of the costs and benefits of said improvements, said sum of $161.05; that being the proportionate part of the costs and benefits of said improvement assessed against said lot in the ratio that said lot bore to the whole property benefited by the improvement, and no more. And that plaintiff did not after the assessment appeal therefrom. A demurrer to the complaint was overruled, and a demurrer to the answer was sustained; and, the defendants all refusing to plead further, appellee had judgment and a decree on the demurrers enjoining the collection of said assessment against appellee's lot 3. The suit was begun in Vigo county, and the cause was transferred on change of venue to the Vermillion circuit court. These rulings are assigned as the only errors.

The improvement in question was made under the act of the legislature approved March 8, 1889 (Acts 1889, p. 237; 2 Burns' Rev. St. 1894, § 4288). The third section thereof, among other things, provides that “in all contracts specified in the preceding section, the cost of any street or alley improvement shall be estimated according to the whole length of the street or alley or part thereof to be improved per running foot, * * * and in all cases where such improvement shall have been made, or may hereafter be made on any street or alley running along or through any unplatted lands lying within the corporate limits of such city or incorporated town shall be estimated according to the whole length of the street or the alley or part thereof to be improved per running foot, and the owners of such unplatted lands bordering on such street or alley or the part thereof to be improved, shall be liable to the contractor for their proportion of the cost, in the ratio of the front lines of such unplatted lands owned by them to the whole improved line, and in making the assessment against such owners for the improvement of such lots or parts of lots and unplatted lands shall be assessed upon the ground fronting or immediately abutting on such improvement back to the distance of one hundred and fifty feet from such front line, and the city or incorporated town and the contractor shall have a lien thereon for the value of such improvement. Provided, however, that where such land is subdivided or platted the land lying immediately upon and adjacent to the line of the improvement and extending back fifty feet shall be primarily liable to and for the whole cost of the improvement, and should that prove insufficient to pay such cost, then the second parcel and other parcels in their order to the rear parcel of said one hundred and fifty feet shall be liable in their order.”

The appellee contends-First, that her lot, not fronting or abutting on the line of the improvement, is not, and she is not, liable for any part of the costs of such improvement in any event, under the provisions of the act from which we have just quoted; and, secondly, she contends that, if she is liable at all, she is only liable after the first and second parcels have been exhausted, and have proven insufficient to pay the costs of the improvement. Appellants contend that the statute makes the ground liable back 150 feet, though each parcel thereof may be owned by a different person; and they concede that the first parcel is primarily liable for the whole cost of the improvement, if it will sell for enough to pay it; and where the 150 feet is, as here, owned in parcels by different owners, and the first parcel is exhausted and proves insufficient, then the next parcel must be resorted to and exhausted before resort can be had to the third, and so on to the rear parcel of the 150 feet. But they contend...