East Chicago Co. v. City of East Chicago
| Citation | 87 N.E. 17,171 Ind. 654 |
| Decision Date | 04 February 1909 |
| Docket Number | 21,349 |
| Parties | East Chicago Company v. City of East Chicago et al |
| Court | Supreme Court of Indiana |
From Lake Circuit Court; Willis C. McMahan, Judge.
Suit by the East Chicago Company against the City of East Chicago and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court (see 42 Ind.App. 383) under § 1429 Burns 1908, Acts 1893, p. 29.
Reversed.
Johannes Kopelke, Winston, Payne & Strawn and Frederick Hack, for appellant.
George B. Sheerer and J. D. Kennedy, for appellees.
Appellant brought this suit to quiet its title to lot twenty-five in block three in the city of East Chicago. It was alleged that this lot had been used for park purposes; that a majority of the legal voters of the city of East Chicago petitioned for the sale of said lot, and the common council of said city granted the prayer of said petition, directed and authorized the sale, and caused the lot to be conveyed to appellant by a deed duly executed by the mayor and attested by the clerk of said city, which deed was duly acknowledged and recorded in the office of the recorder of Lake county; that by virtue of said purchase appellant became the owner in fee of said lot subdivided the same into twenty-four lots, executed and recorded a plat of such subdivision, and sold and conveyed by warranty deeds four lots out of said subdivision to certain named purchasers, who are now the owners thereof, and appellant owns the remaining twenty lots all in fee simple that, notwithstanding such sale and conveyance, said city is yet claiming some right, title and interest in said lot twenty-five adverse to plaintiff, which is a cloud upon its title and the title of its said grantees, etc. Redmond D. Walsh, as a taxpayer of the city, and John R. and Theodore Emery, as the owners of lots across the street from said lot twenty-five, who purchased upon the inducement that it was to remain the property of the city and be used for park purposes, were admitted, upon intervening petitions, as defendants and filed answers. A trial resulted in a finding and judgment against appellant.
The overruling of appellant's motion for a new trial is assigned as error. A new trial was demanded on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The evidence was chiefly documentary and wholly without conflict, and established the following facts: On May 5, 1897, the Standard Steel & Iron Company conveyed lot twenty-five in block three to the city of East Chicago, for the purpose of a public park, and for no other purposes, with conditions to the effect that in case the property should be used for any other than park purposes, or any building should be erected thereon, other than an ornamental band stand, all rights acquired by the deed should cease, and the title revert to the grantor, its successors or assigns. On December 18, 1902, the Standard Steel & Iron Company conveyed to appellant all of its real estate in Lake county, Indiana, belonging to it, or in which it was in any way whatsoever interested, with all reversions, remainders, and all estate, right, title, interest, claim or demand whatsoever of said grantor in the premises, or any streets and public squares bordering upon or adjacent to the premises. The total vote cast by the two leading political parties in the city of East Chicago at the fall election in 1902 was 848, and the total number of votes cast at the last general election held in said city prior to January 4, 1904, was 1,100. Upon the last-mentioned date a petition was presented to the common council of said city, signed by 680 legal voters of said city, asking said council to sell or exchange said lot twenty-five, in use as a park, for the reason that its use for business purposes would be a greater benefit to the city than it was as a park, and that the purchase of a larger tract for park purposes would be better appreciated. At the same time appellant submitted to the common council an instrument in writing showing that it had succeeded to the rights of the Standard Steel & Iron Company in and to said lot twenty-five and all its other property, representing that said lot was inadequate to meet the requirements of the city as a park, and proposing to convey to the city for park purposes a twenty-acre tract described, and block nine in another subdivision of the city, in exchange for said lot twenty-five. Thereupon the common council passed a resolution declaring such exchange advantageous to the city and its citizens, accepting said proposition, and authorizing and directing the mayor to execute to appellant, under the corporate seal of the city, a conveyance for said lot twenty-five upon the delivery to the mayor of a good and sufficient deed from appellant to the city of the property described in its proposition. The common council consisted of six members, five of whom were present, and upon the adoption of said resolution four voted "aye" and one "no." Appellant thereupon executed to the city conveyances for the tracts described in its proposition of exchange, which were accepted and ordered recorded, and the city of East Chicago duly executed to appellant a deed for said lot twenty-five, which was accepted and recorded.
The authority of the city of East Chicago to purchase and hold real estate for use as a park at the time of the transaction in question is found in the following statute: § 3541 Burns 1901, cl. 45, Acts 1895, p. 180.
The following provision is relied upon, as authorizing the sale of the park property to appellant "The common council of any city may upon a petition of a majority of the legal voters of such city sell any public square or public landing of such city, or part thereof, and convey the same by deed under the hand of the mayor and seal of such city, and any moneys arising from such sale shall be deposited in the treasury of such city, to be expended in the purchase of any other public...
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