Coburn v. Bossert
| Decision Date | 11 April 1895 |
| Docket Number | 1,500 |
| Citation | 40 N.E. 281,13 Ind.App. 359 |
| Parties | COBURN ET AL. v. BOSSERT |
| Court | Indiana Appellate Court |
Petition for rehearing overruled October 29, 1895.
From the Marion Circuit Court.
Judgment affirmed.
J Coburn and E. E. Bassett, for appellants.
J. E Bell, for appellee.
This is an action by the appellee against the appellants to enforce the collection of a sewer assessment made by the board of public works of the city of Indianapolis. The court overruled a demurrer to the complaint and the appellants answered and filed cross-complaints, to which demurrers were sustained, and a final judgment and decree was rendered foreclosing the lien. The principal question presented by the ruling upon the demurrers will more readily appear from a statement of so much of the facts as is necessary for that purpose, as they appear in the pleadings.
The appellant Henry Coburn who was the principal defendant below, his wife, Mary Coburn, being made a co-defendant, merely to answer to her interest, is the owner of a lot in the city of Indianapolis, which is located on what is known as "square 38." This lot is fifty feet wide and 202 1/2 feet deep, running north and south, and having its frontage north on East New York street, between Delaware and Alabama, and abutting on the rear or south end on a narrow street or alley called Miami street, or alley. There are lots both to the east and west of the appellant's lot between Delaware and Alabama streets. There is a general or public sewer along Alabama street which was constructed in 1893, as also a local sewer in Miami street to connect with said general or public sewer, and which was constructed about the same time as the public sewer, and for each of which the appellant had been duly assessed and had paid such assessments. The sewer, on account of which the present assessment was made, is a local sewer, running in front of and on the north end of appellant's lot in New York street, and is intended and adapted for the use of the lots adjacent to and bordering and abutting thereon, situated on the north side of New York street, and of the lots on the south side of New York street east of said appellant's lot and bordering on said streets, said lots having no alley in the rear in which a local sewer may be constructed, intended and adapted for local use. It is averred in the cross-complaint that this local sewer is necessary for said lots, and can only be located and constructed for said lots in the place where it is now situated, that being the only public way of approach to said lots from the Alabama street sewer, and that the same was intended, adapted and constructed for the sole use and benefit of the said lots, and for no other purpose whatever.
The point sought to be raised and presented is whether under these facts the city had a right to make the assessment to enforce which this action was brought. The contention of the learned counsel for appellants is that the city government having once exercised the power conferred upon it to order a local sewer, by which the appellant's lot would be drained into the public sewer, that power then became exhausted and could not be again exercised by ordering the construction of another local sewer on the opposite end of such lot. It is also contended by appellants' counsel that the averment that the present sewer was not adapted to drain or benefit the appellants' lot tendered an issue of fact which should have been submitted for trial.
By the act of the General Assembly, known as the city charter of Indianapolis, jurisdiction is expressly conferred upon the city to exercise the right of eminent domain and to provide upon what terms real estate in such city may be drained by means of surface or under drains over and across other real estate therein, etc. Acts 1891, p. 150. It is also provided by the same act that whenever a sewer to be constructed by the board of public works "be intended and adapted only for local use by property-holders along the line of the street or alley on which it is constructed, and in the opinion of such board is not intended or adapted for receiving sewerage from collateral...
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