Fidelity Trust Co. v. Downing

• Decision Date: 11 October 1946
• Docket Number: 28173.
• Citation: 68 N.E.2d 789,224 Ind. 457
• Parties: FIDELITY TRUST CO. et al. v. DOWNING et al.
• Court: Indiana Supreme Court

68 N.E.2d 789

224 Ind. 457

FIDELITY TRUST CO. et al. v. DOWNING et al.

No. 28173.

Supreme Court of Indiana

October 11, 1946

Appeal from Morgan Circuit Court; Omar O'Harrow Judge.

Joseph & Dann, of Indianapolis, and Homer Elliott, of Martinsville, for appellants.

Snethen & Summers, of Indianapolis, for appellees.

STARR Chief Justice.

Appellees commenced this action against the appellants to enjoin them from completing the construction of a building on a parcel of real estate located in the City of Indianapolis and to remove the portion of the structure then completed. From a judgment in favor of the appellees granting an injunction this appeal is prosecuted.

Appellees' complaint alleges that the appellant, Fidelity Trust Company Trustee, at all times mentioned therein was the owner of a certain parcel of real estate in the City of Indianapolis and that there was in force in said city a zoning ordinance dividing the city into zones or districts and regulating and restricting the owners of properties in each district in said city as to the uses of such property and the nature of structural improvements that could be erected thereon. The complaint alleges that pursuant to such zoning ordinance the involved property is zoned in a dwelling house district; that the defendants have started the erection of a frame structure on said real estate which is not of the size or character which could be used or occupied for residential or dwelling house purposes. From the other allegations in said complaint it can be gathered that said structure is not of a kind that can, under the ordinance, be constructed in the district and is a building designed for a nonconforming use; that the plaintiffs each own property within the district where said building is being constructed and to allow said structure to be built will cause each of them an irreparable damage.

The existence of this ordinance is admitted. It provides among other things that a nonconforming use existing at the time of its passage may be continued, but that a building arranged or designed or devoted to a nonconforming use at the time of the passage of the ordinance may not be reconstructed or structurally altered to an extent exceeding in aggregate cost during any ten year period sixty per cent of the assessed value of the building unless the use of said building is changed to a conforming use, but that nothing in said ordinance shall prevent the restoration of such building if wholly or partly destroyed by fire, explosion, act of God or act of the public enemy subsequent to the passage of the ordinance.

The undisputed evidence discloses that at the time of the adoption of the zoning ordinance by the City of Indianapolis a small building was located on the premises in question designed and used for business purposes, namely, a refreshment stand; that by the terms of the ordinance these premises were zoned for residential purposes; that the appellant, Fidelity Trust Company, Trustee, at all times herein mentioned held said property for the use and benefit of one Mr. Jackiel W. Joseph; that said building was never used for purposes other than business and that the same was occupied for several years. Sometime in the month of January, 1943, this building was vacated and remained vacant until its destruction as hereafter set out.

Appellees produced evidence that on April 8, 1944, this building collapsed; that on that date the weather was normal and that there was nothing unusual to cause this building to fall; that just prior to this happening the east door of the building had hung open for several weeks and that the building was leaning badly and was in a very dilapidated condition. One of the appellees' witnesses, who was the city building commissioner, testified that through a definite process of elimination and disintegration there was not much left of the building just prior to its collapse; that the boards had fallen from it, very little roofing was left on the same, and that it leaned at least twenty degrees toward the street and was then being supported by props.

The appellant introduced certain evidence to the effect that the destruction of this old building was caused by an act of God in that the same was destroyed by a windstorm.

The undisputed evidence further discloses that on May 6, 1944 Mr. Joseph obtained a building permit for the rebuilding of the collapsed building in which it was described as a refreshment building. This permit was obtained from the City of Indianapolis through the office of the City Controller and was signed by the said controller and the mayor of said city and approved by the commissioner of building. Shortly thereafter, work on said improvement was begun and at the time of the rendition of judgment herein a substantial...