Holland v. Spell
| Decision Date | 12 February 1896 |
| Docket Number | 17,038 |
| Citation | 42 N.E. 1014,144 Ind. 561 |
| Parties | Holland v. Spell |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled April 16, 1896.
From the Henry Circuit Court.
The judgment is affirmed.
J Brown and W. A. Brown, for appellant.
M. E Forkner, for appellees.
Joshua Holland, whose administratrix has been substituted as appellant herein, sued the appellee and two others in trespass for breaking down certain fences. The appellee, with his co-defendants, in addition to the general denial justified the acts complained of as having been committed by Spell, as the marshal of the town of New Castle, pursuant to an order of the board of trustees of said town and by virtue of certain condemnation proceedings, wherein that part of the enclosure included within the fences destroyed was condemned for a public street, and the plaintiff's damages were assessed and paid to him, and he accepted the same upon the condition that the town would "first acquire the right-of-way for said street through the property adjoining his property immediately upon the east before opening said street." It was alleged also that the said property adjoining had been so acquired. The trial resulted in a judgment for the appellee and his co-defendants. The error assigned in this court is the overruling of a motion for a new trial.
The principal contention arises upon the question, was the finding of the lower court contrary to law? The facts were that in 1877 Holland owned the tract in question, which was separated from a terminus of Vine street in said town by one other tract; proceedings were had to condemn a right-of-way for the extension of said street through said two tracts; the regularity of such proceedings is not questioned back of the reception, by the town board, of the report and assessment of commissioners, in and by which report $ 50.00 were awarded as Holland's damages. At this point in the proceedings said report was laid upon the table, by the action of the board, and no further action appears of record at that time. At a later period, the date of which is not disclosed, the record showed an entry, nunc pro tunc, in the proceedings of said board as follows: After the report of the commissioners the treasurer paid to Holland said sum of $ 50.00, he, said Holland, accepting said sum upon the expressed conditions, by him stated, that he would open the street through his tract when it should be opened through said adjoining tract. The sum so paid to and received by Holland was ever after retained by him. After some litigation with the owner of the adjoining tract, and in 1892, the town acquired, by purchase, a right-of-way for the extension of said street through said adjoining tract and thereupon notified Holland to open the street through his tract. Failing to observe this notice the board ordered Spell, the marshal, to open the street through said tract, and it was in obedience to this order that he did the acts alleged to constitute the trespass.
The appellant's learned counsel devote most of their argument to the proposition that the receipt and retention of the money by Holland upon the oral promise to devote his real estate to the uses of a street did not constitute an enforcible contract and did not estop him to deny the right of entry by the town authorities under such contract.
We apprehend that any rights of the town do not arise upon contract, but must depend upon the condemnation proceedings, such proceedings being valid or Holland being estopped to deny their validity. It is a general rule that where benefits are awarded to the owner of land in proceedings to condemn, an acceptance of the sum awarded will...
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