City of Terre Haute v. Sachs
| Decision Date | 24 November 1908 |
| Docket Number | 21,154 |
| Citation | 86 N.E. 45,171 Ind. 679 |
| Parties | City of Terre Haute et al. v. Sachs et al |
| Court | Indiana Supreme Court |
Rehearing Denied February 19, 1909.
From Vigo Circuit Court; James E. Piety, Judge.
Condemnation proceeding by the City of Terre Haute against which Jacob Sachs and others remonstrate. From a judgment for remonstrants, the city and others appeal.
Affirmed.
Frank S. Rawley, for appellants.
Sydney B. Davis and George M. Davis, for appellees.
The record in this appeal discloses the following facts: On February 5, 1904, the board of public works of the city of Terre Haute, by resolution, instituted condemnation proceedings in respect to Thirteenth street of said city. These proceedings were based upon and in pursuance of sections seventy-eight to eighty-nine inclusive of the governing statute of that city approved March 3, 1899 (Acts 1899, pp. 270, 310, §§ 4190z2-4190k3 Burns 1901). Appellees, property owners whose lands would be affected by the change to be made in the street, were made adverse parties to the proceedings. They appeared and remonstrated against narrowing or changing said street, for the reason that their property, situated along the line thereof, would be greatly damaged by the change. Upon a hearing, the board of works found against appellees as to damages, and ordered the proposed change to be made. On May 31, 1904, within the time fixed by law, appellees, under the provisions of the statute, duly appealed from the order of the board of public works to the Vigo Circuit Court, and the cause was docketed as an action pending therein. On December 12, 1905, it came on for trial before the court, without the intervention of a jury, and the trial thereof was continued from day to day until completed. On March 19, 1906, the court made its finding, and, among other things, assessed damages to appellees in various sums. Appellee Jacob Sachs was given $ 5,000, and the others were awarded smaller amounts. Thereupon the court rendered judgment, upon its finding, that appellees herein recover of the city of Terre Haute the respective sums found in their favor as damages, together with the costs laid out and expended. To this judgment the court added the following: "It is further ordered and adjudged that the defendant city be restrained from aligning and narrowing Thirteenth street between Wabash avenue and the Vandalia railroad from sixty-five to sixty feet, until it shall have first paid or tendered payment of the sums hereinbefore adjudged as occasioned by such change." On April 20, 1906, the city of Terre Haute filed its motion for a new trial. On October 17 of the same year this motion was overruled, to which the city excepted and prayed an appeal to the Supreme Court. On May 18, 1907, appellant city filed its petition for the reinstatement of the proceedings on the docket of the Vigo Circuit Court for the purpose of having the court enter an order discontinuing and dismissing said proceedings. The court, as it appears, "being fully advised," ordered that the cause be redocketed, and thereupon appellees appeared by counsel and demurred to said petition, for the reason that the petition did not state grounds and facts sufficient to constitute a right of action. This demurrer was sustained by the court, and appellant city of Terre Haute refused to further plead, and thereupon the court rendered judgment against it upon demurrer. From this judgment this appeal is prosecuted.
The only error assigned is that the court erred in sustaining appellees' demurrer to the petition to redocket the cause and to vacate the judgment.
The insistence of counsel for appellant city of Terre Haute is that the lower court should, upon the petition of the city have vacated the judgment in the original proceedings and permitted the city, as a matter of right, to discontinue said proceedings. Therefore it is argued that the court erred in sustaining appellees' demurrer to the petition. On the other hand, counsel for appellees contend that if appellant city desired to discontinue or abandon its condemnation proceedings it should have done so without delay; that it cannot be permitted to wait for some seven months after the rendition of the final judgment, adjudging damages in favor of appellees, and then avail itself of the right to have the judgment set aside and the cause dismissed or discontinued. It is further claimed by appellees that the act of 1899, under which the proceedings were instituted, was repealed by an "act concerning municipal corporations," known as the "cities and towns act," approved March 6, 1905 , and in force and effect on April 15 of that year, and therefore the cause, after the taking effect of this latter act, was controlled thereby. But, as shown, the original proceedings were pending in the lower court at the time of the taking effect of the act of 1905, and were excepted from the repealing clause of the latter act (§ 3807 Burns 1905, Acts 1905, p. 219, § 272) and were to be heard and determined in like manner as if such act had not been enacted.
While it may be said that there is some confusion and conflict among the cases, still the general rule which appears to be established by the great weight of authorities is that a municipal corporation, in a proceeding which it has instituted to condemn property for a public use, upon an appeal to a court, as in this case, may discontinue, as a matter of right, its proceedings before or at the time the cause is disposed of in the trial court by some final order or judgment therein. Sowers v. Cincinnati, etc., Railroad (1904), 162 Ind. 676, 71 N.E. 134; 2 Dillon, Mun. Corp. (4th ed.), § 608; Mills, Eminent Domain (2d ed.), § 314; 1 Smith, Mun. Corp., § 716; North Missouri R. Co. v. Lackland (1857), 25 Mo. 515; City of St. Joseph v. Hamilton (1869), 43 Mo. 282, 288; Simpson v. City of Kansas City (1892), 111 Mo. 237, 20 S.W. 38.
This right to discontinue the condemnation proceedings in question, on an appeal to the circuit or superior court, is expressly recognized by § 4190e3, supra, which provides: ...
To continue reading
Request your trial