Gaslight & Coke Co. v. City of New Albany

• Decision Date: 02 April 1902
• Citation: 158 Ind. 268,63 N.E. 458
• Parties: GASLIGHT & COKE CO. v. CITY OF NEW ALBANY.
• Court: Indiana Supreme Court

158 Ind. 268

63 N.E. 458

GASLIGHT & COKE CO.

v.CITY OF NEW ALBANY.

Supreme Court of Indiana.

April 2, 1902.

Appeal from circuit court, Floyd county; W. C. Utz, Judge.

Action by the Gaslight & Coke Company against the city of New Albany. Judgment for defendant, and plaintiff appeals. Affirmed.

Kelso & Kelso, for appellant. Hester & Hester and George H. Hester, for appellee.

HADLEY, J.

Appellant, being the owner of a parcel of land within the corporate limits of appellee city, brought this suit to recover damages for the alleged wrongful appropriation of a strip 10 feet wide, running diagonally across said parcel, for the construction of a permanent sewer. An answer was filed in general denial, and four affirmative paragraphs, each of which was held good as against appellant's demurrer. Reply in denial. Trial by the court. Special finding and conclusions of law against appellant. Appellant's motions to make the special finding of fact more specific and for a new trial were overruled. Errors assigned on all adverse rulings.

The facts set forth in the special finding, so far as material to a decision of the case, are, in substance, these: Appellant in 1870 became and remains the owner of a part of an outlot in the city of New Albany, which it occupies with a part of its gas plant. For more than 20 years prior to its ownership said lot was crossed by a ditch and natural water course, which entered near the southeast corner from Oak street, and meandered in a northwesterly direction to the west line thereof, on Bank street, which ditch and water course, for more than 40 years before the appropriation complained of, had been used by the city for drainage, and was the natural conduit for all water flowing over Oak street, and all other streets and alleys of the city, within a radius of one-fourth of a mile of appellant's property, and was the only means by which the water in said district could flow off and escape, all of which was well known to appellant when it purchased its property. The city, more than 20 years before appellant acquired its property, had constructed and still maintains two sewers, -one running through Oak street, and ending, and emptying its water and sewage into said ditch and water course, at the point where the same enters appellant's premises; and the other beginning in Bank street, at the point where said natural channel leaves appellant's premises, and running thence to Falling Run creek. The sewer from Oak street has all the time continued to discharge into said natural channel at the east line of appellant's lot multifarious and noxious substances from the streets, alleys, and residential pipes, and, flowing out across the lot, created thereby a public nuisance, dangerous to public health. In June, 1890, the common council of the city, by a two-thirds vote of its members, adopted a resolution declaringit necessary to construct a sewer, in and along the general course of said natural water course, across appellant's property; the same beginning and ending at the same points where said water course began and ended on appellant's premises. Such further proceedings were had, in strict conformity with the act of 1889, commonly known as the “Barrett Law,” as resulted in the construction of a covered sewer along said natural channel, made of brick and stone, and the assessment of $923.50 benefits against appellant's property. After the notices provided by law, appellant made no objection to the construction of said sewer, and no objection to said assessment of benefits, and to no other steps in the proceedings, and, with full knowledge, stood by, and, without objection, permitted the contractor to enter upon its premises and construct the sewer, and thereafter paid its said assessment in full. The sewer was constructed and is still maintained as a part of the city's general system. The conclusions of law, in effect, are: (1) The city had a right, in the nature of an easement, to enter and construct the sewer along the natural water channel across appellant's lot. (2) The sewer was constructed, and the cost thereof assessed against the property benefited, in strict accordance with the statute, and the plaintiff is now estopped from claiming damages.

The foregoing facts being all within the scope of the issues, the conclusions of law drawn therefrom present the same questions raised by the demurrers to the answers, and consideration of the demurrers will therefore be omitted. Runner v. Scott, 150 Ind. 441, 50 N. E. 479;Brewing Co. v. Malott, 151 Ind. 372, 51 N. E. 471;Gunder v. Tibbits, 153 Ind. 592, 55 N. E. 762. We are not called upon to decide moot questions. State v. Board of Com'rs of Grant Co., 153 Ind. 302, 54 N. E. 809.

The sewer in controversy was constructed, not by virtue of any claim of the city to an easement entitling it to enter appellant's premises for that purpose, but by virtue of the statute enacted for the government of such enterprises. Hence the question presented by the first conclusion of law is moot, and will not be considered.

With respect to the second conclusion of law, it should be noted that municipalities have conferred upon them by the legislature the following general powers: “To fill up or drain any lot or parcel of ground within such city, *** whenever water has or may become so stagnant or noxious as to be in the opinion of such council a nuisance and injurious to health.” Section 3541, cl. 2, Burns' Rev. St. 1901. “For the purpose of drainage of such city the common council may go beyond the city limits and condemn lands and materials, and exercise full jurisdiction and all the necessary power therefor.” Id. cl....