Civil City of Indianapolis v. Ostrom Realty And Construction Co.

• Decision Date: 27 May 1931
• Docket Number: 14,182
• Parties: CIVIL CITY OF INDIANAPOLIS ET AL. v. OSTROM REALTY AND CONSTRUCTION CO
• Court: Indiana Appellate Court

176 N.E. 246

95 Ind.App. 376

CIVIL CITY OF INDIANAPOLIS ET AL. v. OSTROM REALTY AND CONSTRUCTION CO

No. 14,182

Court of Appeals of Indiana

May 27, 1931

Rehearing denied October 1, 1931.

Transfer denied December 21, 1932.

From Marion Circuit Court (42,644); Harry O. Chamberlin, Judge.

Action by Ostrom Realty and Construction Company against the civil City of Indianapolis and others to enjoin the latter from interfering with the construction of a certain building. From a judgment for the plaintiff, defendants appealed.

Reversed.

Edward H. Knight and Albert Stump, for appellants.

Martin M. Hugg and L. R. Zaff, for appellee.

KIME J. Lockyear, J., not participating.

OPINION

KIME, J.

This is an action for an injunction and damages brought by appellee to enjoin the appellants from interfering with the construction of a building. The appellee filed an amended complaint, which alleged, in substance: That on or about the 22d day of July, 1926, it acquired by purchase lots Nos. 1, 2, 3, 4, 5, and 6 in Blue's Outlook, a subdivision of the city of Indianapolis; that lots 1 and 2 thereof were located in and about the conjunction of Forty-sixth Street and Boulevard Place in said city. That on or about June 22, 1926, the City Plan Commission of the city of Indianapolis, by resolution unanimously adopted, zoned the property for business purposes, and that relying upon the action of said City Plan Commission in so establishing said property as a place where a business structure might be erected, the appellee caused to be drawn plans and specifications for a business structure; that said plans and specifications were in due course submitted to the Board of Zoning Appeals at a regular meeting (that all of the owners of property in the square which had been zoned for business as hereinbefore set out were either present in person at said meeting or had presented to said board written waivers and consents to the improvements the appellee contemplated making); that the application of appellee for approval of the design for the erection of a business structure was submitted to the Board of Zoning Appeals, which board accepted said design and instructed the Commissioner of Buildings to issue a permit for such improvements; that a building license was issued on November 5, 1926, and shortly thereafter appellee began excavating and the construction of a foundation, and before a superstructure could be placed appellee was notified that the Board of Public Works intended to appropriate certain portions of its property for the widening of Forty-sixth Street, and that continuance of the work would be at appellee's risk. Shortly thereafter appellee was notified that the City Plan Commission intended to take additional set-back property for other purposes, and therefore, appellee, in the face of said warnings and proceedings, took no further action toward the completion of said structure for some time. Later appellee asked for and was granted a renewal of its building license, and same was issued under date of December 31, 1927. At a later date appellee commenced additional work upon the structure, and on the morning of August 21, 1928, the Commissioner of Buildings or his representative appeared on the premises of appellee and ordered its workmen to cease work, stating that the license had been revoked and that the City Plan Commission, under date of June 5, 1928, had rescinded its action and restricted the said district to residence property only; that the building commissioner held that the construction of the building was not in accordance with the zoning ordinance of the city of Indianapolis, and thereupon caused the workmen to be placed under arrest and would not allow the building to be constructed.

Appellee, in its amended complaint, asked that appellants be perpetually enjoined from entering upon its real estate or interfering with the erection of said building thereon, and for damages to the extent of $ 5,000.00.

To the amended complaint appellants filed a motion to make more specific, which motion the court overruled. The appellants thereupon filed a demurrer, which was also overruled, and they then filed an answer in two paragraphs, the first being in general denial and the second an affirmative answer, to which second paragraph appellee filed a reply in general denial.

The cause was tried by the court, who found for the appellee, granting a permanent injunction against appellants, enjoining them from entering upon the said property, interfering with construction work thereon, etc. The appellants then filed a motion for a new trial, which was overruled.

The appellants have assigned as error here: 1st, overruling of motion to make amended complaint more specific; 2d, overruling of demurrer to amended complaint; 3d, overruling of motion for a new trial, which assigns two reasons: (a) that the decision is not sustained by sufficient evidence, and (b) that the decision is contrary to law.

The statute governing zoning is Chapter 225 of the Acts of 1921, being Secs. 10372 to 10377 Burns 1926, and so much as is applicable here provides: "In order to conserve the value of property in the city and to the end that adequate light, air, convenience of access, and safety from fire and other danger may be secured; that congestion in the public streets may be lessened or avoided, and that the public health, safety, comfort, morals, convenience, and general welfare may otherwise be promoted, the common council in each city shall have the following powers: To classify, regulate and limit the height, area, bulk and use of buildings hereafter to be erected; to regulate and determine the area of front, rear and side yards, courts and other open spaces about such buildings; to regulate and determine the use and intensity of use of land and lot areas; to classify, regulate and restrict the location of trades, callings, industries, commercial enterprises and the location of buildings designed for specified uses; to divide the city into districts of such kinds, character, number, shape and area as it may deem best suited to carry out any or all of the purposes of this section," etc. (Our italics.)

Sec. 3 of the Act provides that: "The common council of any such city may from time to time after public notice and hearing amend, supplement or change the regulations and districts fixed by ordinance pursuant to this act." (Our italics.)

Sec. 4 provides...