Ernsperger v. City of Mishawaka

• Decision Date: 15 March 1907
• Docket Number: 20,854
• Citation: 80 N.E. 543,168 Ind. 253
• Parties: Ernsperger et al. v. City of Mishawaka
• Court: Indiana Supreme Court

80 N.E. 543

168 Ind. 253

Ernsperger et al. v. City of Mishawaka

No. 20,854

Supreme Court of Indiana

March 15, 1907

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Annexation proceeding by the City of Mishawaka, against which William Ernsperger and others remonstrate. From an order granting the petition, remonstrants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Anderson Du Shane & Crabill, Hastings & Woodward and John A Hibberd, for appellants.

Archibald G. Graham and Joseph G. Orr, for appellee.

OPINION

Hadley, J.

Appellee, on December 14, 1903, presented to the Board of Commissioners of the County of St. Joseph its petition praying for the annexation of certain territory, the opening and only averment on the subject in said petition being as follows:

"Your petitioners, the common council of the city of Mishawaka, State of Indiana, represent to your honorable body that the following territory which they desire annexed to said city is platted and unplatted and contiguous to said city, namely:" [Then follows a description of lands, in three tracts, numbered one, two and three.]

Appellants timely appeared before the commissioners and filed remonstrances against the annexation, among other things denying each and every allegation contained in the petition. The remonstrators, having been defeated before the commissioners, appealed to the circuit court where a similar result was obtained before the jury. Appellants moved in arrest of judgment on the ground that the petition "does not show any cause of action, or any right to the annexation as prayed." The motion was overruled, and this action of the court is urged upon us as being erroneous.

The question presented is one of jurisdiction; appellants maintaining that the petition shows affirmatively that the board of commissioners has no jurisdiction of the subject-matter, by reason whereof the judgment appears without foundation to rest upon.

In annexing territory to the existing boundaries of cities in this State, if the territory is contiguous and has been platted into town lots, as prescribed by law, and the plat recorded in the recorder's office of the county, the city itself has the exclusive power to annex such platted ground, or to decline it, as its common council may determine. § 3658 Burns 1901, § 3195 R. S. 1881.

It is only in cases where the city desires to annex unplatted contiguous territory that county boards have any jurisdiction or authority to take cognizance of the subject. § 3659 Burns 1901, § 3196 R. S. 1881; Forsythe v. City of Hammond (1895), 142 Ind. 505, 30 L. R. A. 576, 40 N.E. 267; Strosser v. City of Ft. Wayne (1885), 100 Ind. 443; City of Logansport v. LaRose (1884), 99 Ind. 117.

Therefore, whether the land proposed for annexation is platted or unplatted is a jurisdictional fact, which, as held in Chandler v. City of Kokomo (1894), 137 Ind. 295, 36 N.E. 847, must not only be alleged but proved. See authorities cited at page 298. Loeb v. Mathis (1871), 37 Ind. 306.

An attempted annexation of unplatted territory by the city council, without the consent of the owner, is null and void for want of jurisdiction. City of Indianapolis v. McAvoy (1882), 86 Ind. 587; Strosser v. City of Ft. Wayne, supra. In the latter case it is said: "It was an attempt by one tribunal to exercise jurisdiction over a subject-matter of which another tribunal had exclusive jurisdiction. There was not simply a defect or irregularity in the proceedings, but there was an absolute want of jurisdiction of the subject-matter, for it was an attempt to exercise a jurisdiction given by statute to an entirely different tribunal. The law upon this subject is thus stated by Judge Cooley, who, in speaking of the power to legalize tax proceedings, says: 'One very precise limit to the power to cure these proceedings is this: They cannot be cured when there was a lack of jurisdiction to take them. This is a rule applicable to every species of legal proceedings.'"

The term "platted," as used in § 3658, supra, of the annexation statutes in contradistinction to "unplatted" territory as used in § 3659, supra, has a technical signification, and means legal plats, a platting for town purposes in accordance with the provisions of §§ 4411, 4413 Burns 1901, §§ 3374, 3376 R. S. 1881; and when employed in a petition for annexation will be presumed to be used in its statutory sense. Forsythe v. City of Hammond, supra. Land not contiguous to the city, but laid off in lots, is not platted land within the meaning of the statute. Neither is contiguous land that has been laid off in lots and the plat not acknowledged and recorded. In short, all adjoining lands that have not been subdivided into lots, streets and alleys, and the division executed in substantial compliance with §§ 4411, 4413, supra, should be described in an annexation proceeding as unplatted territory. These qualifying words are the chief means by which the jurisdiction may be determined; that is, whether the proceedings should be lodged with the county board or with the common council of the city.

This case is very...