Keehn v. McGillicuddy
| Decision Date | 18 June 1896 |
| Docket Number | 2,126 |
| Parties | KEEHN v. MCGILLICUDDY ET AL |
| Court | Indiana Appellate Court |
From the Porter Circuit Court.
Judgment reversed, with instructions to overrule the demurrers to the first and fourth paragraphs of complaint.
N. J Bozarth, and L. R. Martin, for appellant.
W Johnston, for appellees.
The appellant was the plaintiff below, and her complaint consisted of four paragraphs. The second paragraph was withdrawn, and demurrers were sustained to each of the others. The rulings on these demurrers are the errors assigned.
The first paragraph alleges, in substance, that the plaintiff is the owner of a certain tract of land situate within the corporate limits of the city of Valparaiso, fronting and abutting on Locust street; that in the year of 1886, the common council of said city passed an ordinance fixing and establishing the grade for such street; and that the street was graded and improved in accordance therewith; that afterwards, and while the ordinance was in full force, the plaintiff improved her property by erecting a dwelling house, and making lasting and valuable improvements thereon, in conformity to such established grade; that, subsequently to the making of such improvements, the common council, without having first assessed and tendered the damages occasioned thereby, by ordinance changed the grade and authorized the defendants to change the grade of said street; that, in pursuance of the direction and authority of the city, the defendants did change the grade by raising the same in front of plaintiff's dwelling house and premises from six to twelve feet higher than the former grade, causing a large embankment to be erected in front of her house, obstructing the view and rendering access thereto from the street difficult by reason of the precipitous banks, and damaging her property to the extent of $ 2,000.
It is the law of this State, that when the city authorities have once established the grade of any street or alley, such grade shall not be changed until the damages occasioned by such change shall have been assessed and tendered to the parties injured or affected by such change. Section 3508, Burns' Rev. 1894, (3073, R. S. 1881); City of Jeffersonville v. Myers, 2 Ind.App. 532, 28 N.E. 999.
According to the averments, the city was a wrongdoer in changing the grade, and those who acted with it, or at its instigation were...
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