Dyer v. Woods

• Decision Date: 25 January 1906
• Docket Number: No. 20,644.,20,644.
• Citation: 166 Ind. 44,76 N.E. 624
• Parties: DYER v. WOODS et al.
• Court: Indiana Supreme Court

166 Ind. 44

76 N.E. 624

DYER

v.WOODS et al.

No. 20,644.

Supreme Court of Indiana.

Jan. 25, 1906.

Appeal from Superior Court, Vanderburg County; Jno. H. Foster, Judge.

Action by Azro Dyer against Charles Woods and others, constituting the board of public works of the city of Evansville. From a judgment in favor of defendants, plaintiff appeals. Affirmed.Geo. Palmer and Louis Ahlering, for appellant. A. W. & A. F. Funkhouser and F. M. Hostetter, for appellees.

GILLETT, C. J.

There seems to be a disagreement between the parties on either side of the record as to whether this suit, which was instituted by appellant, is to set aside certain proceedings of the board of public works of the city of Evansville on the ground that they created an apparent lien on real estate, or whether the suit is to enjoin appellees, as members of said board, from making a special assessment and certifying the same to the board of finance of said city. A demurrer was overruled to the complaint. Appellees answered in three paragraphs, the first of which was subsequently withdrawn. Appellant unsuccessfully demurred to the second and third paragraphs, and he then filed a reply, to which a demurrer was sustained. Appellant elected to abide his exception to this ruling, and a judgment that he take nothing followed. The rulings on demurrer to the answers and to the reply are assigned as error. The assignment as to the answers is joint.

It appears from the complaint that at the time of the filing thereof (June 9, 1904), and for five years prior thereto, appellant was the owner in fee simple of a portion of lots 201 and 202 in Donation Enlargement of said city, and that his said real estate has a frontage on Fourth street of 109 1/2 feet, extending from Locust street in the direction of Main street; “that on May 18, 1901, said board passed a resolution that it was necessary to construct an artificial stone sidewalk, of the width of 10 feet, situate on the northeast side of Fourth street, between Main and Locust streets,” in which resolution it was recited that appellant was the owner of real estate abutting on said sidewalk in the language and figures following, to wit:

+-----------------------------------------------+
                ¦Name of Owner¦Description¦Lot¦Block¦Enlargement¦
                +-------------+-----------+---+-----+-----------¦
                ¦Aug B        ¦           ¦   ¦     ¦           ¦
                +-------------+-----------+---+-----+-----------¦
                ¦Azro Dyer    ¦34.6 feet  ¦202¦     ¦           ¦
                +-------------+-----------+---+-----+-----------¦
                ¦‘            ¦25 ‘       ¦201¦     ¦Donation   ¦
                +-----------------------------------------------+
                

Facts are then alleged in said complaint showing that the only notice issued by the board for service on the owner of the property recited that Azro Dyer, the appellant, was the owner of lots 201 and 202, Donation Enlargement, and that the only proof that such notice was served upon the owner consisted of a return of service by the superintendent of police that a police officer had served said notice on said Dyer on May 22, 1901. It is further alleged that, without any further proof of notice, the board, on July 20, 1901, entered on its records an order approving and confirming said resolution, and that on July 24, 1901, said board issued and caused to be served on appellant an order and notice in writing, to the effect that the board ordered the owners of the property situate on the northeast side of Fourth street, between Main and Locust streets, to cause the sidewalks thereon to be brought to the proper grade, and that they cause a sidewalk 10 feet wide to be laid thereon within 30 days, and that in default thereof the board would proceed to contract for the work at the owner's expense. This notice had embodied in it the following descriptive words and figures:

+-------------------------------------+
                ¦Names of Owners    ¦Block¦Enlargement¦
                +-------------------+-----+-----------¦
                ¦Azro Dyer, 34.5 ft.¦202  ¦           ¦
                +-------------------+-----+-----------¦
                ¦75 ft.             ¦201  ¦Donation   ¦
                +-------------------------------------+
                

The further allegations of said complaint, and the prayer for relief, are as follows: “Thereafter, for and during a period of more than two years, to wit, from July 24, 1901, until August 12, 1903, a sidewalk 10 feet wide, of the proper grade, precisely of the kind required by said order and direction of July 24, 1901, was kept and maintained in front of the real estate owned by plaintiff, as aforesaid, and the same remained in good condition until August 12, 1903, when suddenly, without notice to this plaintiff, and against his consent and over his protest, said sidewalk was torn up and destroyed by the command of the said board, who thereupon caused an artificial stone sidewalk to be constructed in place thereof. Plaintiff's said real estate is not situate in the residence district, but the same is used solely for business purposes. On May 18, 1901, there was no necessity for the construction of an artificial stone sidewalk in front thereof. The brick sidewalk maintained in front thereof from and after July 14, 1901, had, prior to May 1, 1901, been constructed in obedience to the ordinances of the city, and had been continuously, from May 1, 1901, kept and maintained in good condition in exact conformity with the ordinance of said city, and was during all of said time, to wit, from May 1, 1901, until August 11, 1903, stronger and superior to the artificial stone sidewalk placed in lieu thereof by order of said board in August, 1903. Neither said plaintiff nor his said real estate received any special benefit from said artificial stone sidewalk which was constructed by command of said board, but, on the other hand, plaintiff's real estate was injured by the exchange of the brick sidewalk, above mentioned, for said artificial stone sidewalk. The plaintiff states that the keeping up and maintaining of said sidewalk, of the kind ordered and directed as above set out, from July 25, 1901, until August 12, 1903, was a performance and satisfaction of said resolution of May, 19, 1901, approved July 20, 1901, and operated as an estoppel upon said board to prevent any attempt of said board thereafter to enforce said resolution of May 18, 1901. During the year 1903 said board prepared an assessment roll, in which an assessment was fixed against the said real estate of the plaintiff in the sum of $129.93, for the cost of said artificial stone sidewalk, and thereafter, on the 16th day of January, 1904, said board confirmed said assessment, and certified said assessment roll to the department of finance of said city. Notwithstanding said assessment of January 16, 1904, appears to be and remain a lien upon the plaintiff's said real estate, said board, on May 31, 1904, caused to be served on this plaintiff a written notice that it had prepared an assessment list, assessing against lots 201 and 202, Donation Enlargement, the sum of $129.93 for the construction of a sidewalk abutting on said lots, and that on the 11th day of June, 1904, at the hour of 2 o'clock p.m., it would assess said real estate and the owners thereof with the cost of said sidewalk. Plaintiff states that the assessment so threatened to be made on June 11th is and would be for the cost and construction of the identical sidewalk for which assessment has already been made on January 16, 1904, as above set forth. The plaintiff states that the making of said threatened assessment by said board on June 11, 1904, would produce great injury to this plaintiff, and would create a cloud upon the plaintiff's title to his said real estate, and the plaintiff is and would be remediless at law to remove said cloud. Plaintiff states that all of said proceedings of said board, so far as they concern the said real estate of the plaintiff, are void for uncertainty in the description of the said real estate sought to be affected, and for want of jurisdiction over the subject-matter and the party. Wherefore, the plaintiff prays that a temporary injunction be issued to restrain said defendants from making or attempting to make any further assessment against the plaintiff's real estate, that on a final hearing such injunction be made perpetual, and that all the resolutions and proceedings of said board in respect to plaintiff's real estate be declared void, and for such other and further relief as shall be adjudged equitable in the premises, and for costs.”

The contents of the second paragraph of answer need not be stated. The third paragraph of answer purports to plead the facts in extenso as to the steps which the board were proceeding to take, and the reasons therefor. In substance said answer alleges that as the notice of the proceedings of January 16, 1904, was not in fact served on the appellant, and as the record as to service did not show that the notice had been served by the person who made a return thereof, and as appellant was denying the validity of the attempted assessment made on that day, the board, as it regarded said assessment as invalid, had, by order of record, fixed June 11, 1904, as the date when appellant might remonstrate against said assessment, and had, on May 31, 1904, caused him to be served with a copy of said order. It is further stated in said paragraph that the purpose of said board is, not to make two assessments, but to make one valid and binding assessment for the improvement constructed by its order.

The reply contains no really new fact. It merely sets out the notice and the return on which the proceeding of ...