Helm v. Witz

• Decision Date: 17 March 1905
• Docket Number: No. 5,174.,5,174.
• Parties: HELM et al. v. WITZ.
• Court: Indiana Appellate Court

35 Ind.App. 131

73 N.E. 846

HELM et al.

v.WITZ.

No. 5,174.

Appellate Court of Indiana, Division No. 1.

March 17, 1905.

Appeal from Circuit Court, White County; T. F. Palmer, Judge.

Action by Alvin Wits against Edna Helm and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Reynolds, Sills & Reynolds, for appellants. Guthrie & Bushnell, for appellee.

ROBINSON, P. J.

This is an action to foreclose an assessment for a street improvement. North street runs east and west in the town of Monticello. Lying immediately north of North street, and parallel with it, is High street, 30 feet wide. Appellant Edna Helm owns real estate which abuts on the east end of High street. On September 4, 1900, a petition signed by appellant Edna Helm and other property owners was presented to the board of town trustees for the improvement of High street, the petition stating that the petitioners owned property on the street to be improved. The board ordered the engineer to establish a grade and prepare plans and specifications for the improvement, and on the 16th day of October, 1900, adopted a resolution that the board deemed it necessary to improve High street in accordance with the specifications on file in the office of the engineer, and that the total cost of the improvement should be assessed per lineal foot upon the real estate abutting on the north side of the street. On January 25, 1901, the board adopted an ordinance for the improvement of the street as provided for in the declaratory resolution, and that the cost of the improvement should be charged and apportioned to the lots and lands abutting on the north side of the street, and that the clerk should give notice of the letting of the contract for the construction of the improvement by giving 10 days' notice. Notice of the letting of the contract was given, and afterwards the contract for the construction of the improvement was, on April 16, 1901, let to appellee, Alvin Witz, who entered into a written contract with the board, and who has fully performed his contract. On June 17, 1901, the engineer filed his first and final estimate of the cost, and the board appointed a committee to hear grievances on account of such improvement. On April 22, 1901, this committee filed its report, which report the board on the same day voted to amend in certain particulars, and thereupon assessed certain property therein described; but the property of appellant Edna Helm was not assessed. On November 4, 1902, the board, by resolution, vacated and canceled the assessment made as above stated, and on the same date entered upon its record a finding that appellee had completed the work, and ordered the engineer to make a final estimate of the cost. The engineer then filed his final estimate and apportionment of costs, and reported that the property of appellant Edna Helm abutted on the east end of High street, and set out a description of her property. Thereupon the board appointed a committee, which afterwards met pursuant to notice to hear complaints, and, after considering the report of the engineer, reported that the engineer's report should be altered and amended. On the 2d day of December, 1902, the board approved and adopted the committee's report, and amended the report of the town engineer, and proceeded to assess the cost of the improvement against the property abutting on High street. Included in the property so assessed is the property of appellant Helm, which abuts on the east end of High street, but which does not abut on the north side of the improvement. High street is the only public highway that affords any practical means of access to appellant Helm's property. The court found that the amount of the assessment against her property, including attorneys' fees, was $130.12. Upon conclusions of law the court rendered judgment, and decreed that the lien of the assessment be foreclosed.

The material question presented by this appeal is whether the assessment as finally made is valid. Appellant's counsel contend that when the board made an assessment it could not, after final action, set the assessment aside; that the first assessment, which did not include appellant's lot, exhausted the power of the board. The improvement consisted of graveling the roadway and constructing a cement sidewalk along the north side of the street. Immediately south of and adjacent to the street to be improved was a public street. The property “bordering on such street,” within the meaning of the statute, was north and east of that portion of the street proposed to be improved. As an abutting property owner, appellant joined in a petition to the board asking that the improvement be made. The board, in...