Hawks v. The Mayor

• Decision Date: 25 March 1896
• Docket Number: 17,795
• Parties: Hawks et al. v. The Mayor et al
• Court: Indiana Supreme Court

43 N.E. 304

144 Ind. 343

Hawks et al. v. The Mayor et al

No. 17,795

Supreme Court of Indiana

March 25, 1896

From the Elkhart Circuit Court.

The judgment is affirmed.

F. E Baker and C. W. Miller, for appellants.

W. L Stonex and A. S. Zook, for appellees.

OPINION

McCabe, J.

This is an appeal from a judgment rendered against the appellants upon an agreed statement of the facts under section 562, R S. 1894 (R. S. 1881, section 553). The only error assigned here is that "The court erred in rendering judgment against appellants, C. & E. Hawks, and in issuing a peremptory writ of mandate against them." The agreed statement is as follows:

"The Mayor and Common Council of the City of Goshen v. The Board of Commissioners of the County of Elkhart and C. and E. Hawks.

Submission of the agreed case, under section 553, R. S. 1881.

"The mayor and common council of the city of Goshen, Indiana, the board of commissioners of Elkhart county, and C. & E Hawks, by agreement submit to the Elkhart Circuit Court for decision the following controversy: In the year 1866, and for many years prior thereto, there was a public highway leading into the town of Goshen from the southwest. In that year a hydraulic canal company constructed a canal along the west side of the town, which cut through the said highway. The canal company, at its own expense, constructed a frame bridge across the canal at that point, although only wide enough to allow of one team crossing upon it at a time, was of sufficient size to accommodate the travel on the highway and satisfactory to the public authorities.

"The bridge was maintained solely by the canal company until the company, having become insolvent, went into the hands of a receiver in the year 1893.

"C. & E. Hawks bought the canal property of the receivers, and no repairs have since been made. The bridge is now out of repair and dangerous, and a new bridge is necessary.

"The population of Goshen has greatly increased since 1866, and so has that of the adjoining territory southwest of the city. In the vicinity of the bridge on the east new streets have been laid out, and all of the land, then covered with timber on the east, north and south of it, has been platted into city lots and very generally built upon. The highway first mentioned is now West North street, and it and the bridge are wholly within the city limits. Extending from the north, Third street has been opened and terminates at the east end of the bridge, as shown on the diagram attached hereto and made a part hereof. With the increase in population there has been a corresponding increase in the use of the highway and the travel thereon, making it necessary to have a bridge constructed of sufficient width to allow two teams to cross at the same time. To accommodate the travel of Third street it is also necessary to change the location of the bridge, the width of the same, and also to protect it with a guarded approach from the northeast, and also to construct said bridge on a different angle. A bridge could be constructed substantially, like that originally built, for $ 150.00, but such a bridge as the public necessities require will cost nearly $ 650.00. C. & E. Hawks refuse to build or repair the bridge, and the mayor and common council of the city, having first called upon them to build such a bridge as the public necessities require, upon their refusal to do so, have called upon the board of commissioners of Elkhart county to cause the same to be constructed, under the provisions of the act of March 7, 1885. The board of commissioners also refused to construct the bridge.

"The mayor and common council of the city of Goshen claim that as the bridge which must be constructed will cost more than $ 500.00, they have no duty in the premises except to notify the board of commissioners of the county of the necessity, and to call upon them to build it at the expense of the county. They also claim that as the necessity for the construction of any bridge at that point was caused by the act of the grantors of C. & E. Hawks, they, and their successors, are bound to maintain the same and keep it in repair in such a way as to fully provide for the public requirements at all times.

"The board of commissioners claim that as the bridge is a private bridge they are charged with no duty in respect to it. They also claim that they are charged with no duty in respect to said bridge for the reason that if the county or city is required to pay such a part of the cost of a sufficient bridge as exceeds the cost of such a bridge as the canal company and its grantees have heretofore maintained, yet this excess is less than $ 500.00, and therefore the duty of constructing and paying for it rests on the city, and not on the county. They also claim that if as between the county and the public it is their duty to construct a sufficient bridge and pay for the same, yet they are entitled to recover from C. & E. Hawks the cost thereof, or at least a sum equal to the cost of constructing such a bridge as their grantors were originally bound to erect and maintain, and if they are only entitled to recover from C. & E. Hawks the said sum, viz.: $ 150.00, they are entitled to recover the residue of the cost of the city, as such residue is less than $ 500.00. C. & E. Hawks claim that they should not be liable for any part of the cost of the construction of the new bridge for the following reasons, to-wit: First. That the new bridge ordered to be constructed by the city of Goshen is entirely different from the old structure, and that such change in the size, location and construction of the new bridge is required to accommodate the new and different rights of the public. Second. That...