Kessler v. City of Indianapolis

• Decision Date: 19 July 1927
• Docket Number: No. 24831.,24831.
• Citation: 199 Ind. 420,157 N.E. 547
• Parties: KESSLER v. CITY OF INDIANAPOLIS et al.
• Court: Indiana Supreme Court

199 Ind. 420

157 N.E. 547

KESSLER

v.CITY OF INDIANAPOLIS et al.

No. 24831.

Supreme Court of Indiana.

July 19, 1927.

Appeal from Superior Court, Marion County; Linn D. Hay, Judge.

Suit by Rose M. Kessler against the City of Indianapolis and another. Judgment for defendants, and the plaintiff appeals. Reversed, with instructions.

Miller, Dailey & Thompson, Albert L. Rabb, Thos. D. Stevenson, and Perry E. O'Neal, all of Indianapolis, for appellant.

Telford B. Orbison, of Indianapolis, for appellees.

MARTIN, J.

Appellant sued to enjoin the city of Indianapolis and its board of park commissioners from taking under the power of eminent domain, a triangular strip of ground, 163 feet long and containing .073 acres, abutting on the Pleasant Run Parkway, within said city, and constituting the north part of a plot owned by appellant.

In 1911 the strip of ground was conveyed to the appellee city by appellant's remote grantor, “for parkway and boulevard purposes and for such purposes alone,” with a provision in the conveyance that if it should, in the future, “be abandoned or cease to be used for such purposes,” it should “thereupon immediately revert.” Prior to May 10, 1923, the course of the boulevard was changed because of the construction of a new bridge over Pleasant run, and as a result of such relocation the triangular strip of ground was left vacant and unused. On that date the board of park commissioners by resolution abandoned said strip and turned it back to appellant, who thereupon fenced it in and planted shrubbery upon it.

Appellees do not dispute appellant's points that a determinable fee was vested in the city (Aldred v. Sylvester [1915] 184 Ind. 542, 561, 111 N. E. 914), that the same was thus ended, and that by the “possibility of reverter,” of which appellant was the grantee, she then became vested with title to the strip of ground (13 C. J. 1017; Fall Creek School Township v. Shuman [1913] 55 Ind. App. 232, 103 N. E. 677).

On September 1, 1923, the board of park commissioners adopted a resolution seeking to retake and reappropriate for park purposes this strip of ground, and, upon the hearing, appellant appeared and remonstrated in writing against such taking. The board ratified the resolution and appointed appraisers who in due time filed their report.

Appellant's complaint, in two paragraphs, alleged in part that the avowed purpose of the board's resolution was to compel and force appellant to grant to a private owner of property which abuts said strip on the east a wider right of way from said property to the Pleasant Run Parkway and boulevard. Appellant also alleged that should the strip be taken she “will be deprived of her property for private and not for public use and benefit *** and without due process of law.” The issues were joined by general denials.

The cause was tried by the court, and at the conclusion of appellant's evidence the appellees moved for a judgment in their favor, and stood upon their motion. The court found for the appellees and rendered judgment in their favor. Appellant assigns as error the overruling of her motion for a new trial. Among the reasons therein set out are the following: That the decision of the court is not sustained by sufficient evidence; that it is contrary to law; and that the court erred in sustaining appellees' motion for judgment in their favor and for dissolution of a temporary injunction which had been issued.

It appeared in evidence that lot 9, appellant's lot and lot 11, the lot immediately east thereof owned by a Mrs. Miller, both abut on the south on Audubon drive, and that appellant's lot abuts on Pleasant Run Parkway as did also lot 11 before the triangular strip was abandoned by the city; that the city owns ground 9.67 feet in width between the abutment of the bridge over Pleasant run and appellant's iron fence, and owns no land on the south or west sides of Pleasant run to which it needed a means of access; that the city engineer in the office of the park board demanded of appellant through her husband, “Are you going to give that right of way over that property to Miller?” and that upon refusal he said, “If you don't, the board will rescind their resolution,” went to the telephone, called up the president of the park board, and said, “Kessler won't give that right of way to Miller.”

At the hearing on the remonstrance, the president of the board, the late Charles A. Bookwalter, stated that “the purpose of the resolution was to do justice; *** that all they wanted was to give a right of way to the Miller lot.” Mr. Bookwalter, testifying as to what transpired at the meeting, said:

“I said it seemed to me as though this was a matter that ought to be easily settled, as between the parties. They were the most interested. They were the people who had to live there with one another, and I have always found that a peaceful relationship is much more pleasant than otherwise. And I said that such an action as this would give this man an opportunity to get out on the boulevard and just give him an easement in that way. *** Mr. Cline or Mr. McGuire (other members of the board) said, ‘He already has easement on Audubon road,’ and I said ‘Yes; but doesn't he have a right to come out on the boulevard?’ *** I said I would see Kessler at the Columbia Club and would not have any trouble in getting an easement. I saw Kessler, but did not get the easement.”

Mr. Bookwalter, in answer to a question asking if the purpose of resolution 21 was to provide an easement over the triangular strip of ground, said:

“Yes; in that the equity demanded and gave to Mr. Miller that right. No; in that the (city) engineer had been insistent then and before that he would need the ground in extending Pleasant Run Boulevard around the east shank of Pleasant run. That was the argument made by Mr. Elliott (city engineer) and Mr. Miller (husband of owner of lot 11) from the start, that the city ought not to do it (abandon the strip) and the board acted contrary to his advice.”

Mr. Bookwalter testified that the board had overruled the objections of the city engineer; that he felt the engineer's objections might be based on a feeling of unfriendliness toward Mr. Kessler, as he knew they had had some unpleasant dealings, and that the purpose of retaking it was both for the purpose of providing an easement for the owner of lot 11 and providing a possible future access to land lying on the south side of Pleasant run in future contemplated park and boulevard development; that the cause of this decision to reversethe action of the board and to acquire the property was:

“The continued insistence on the part of the engineer that the board had made a very serious mistake, and because of a feeling on my part, *** in ideals of equity, that the intention of the board is never to interfere with the rights of any property owner and the feeling that the owner of lot 11, at least, had the right, in all fairness, to get out on the boulevard.”

[1] Appellee's city attorney contends that the authority of the courts is limited to a consideration of whether the “use” for which the property is taken is or is not a “public use”; that resolution No. 21 stated on its face that the strip of ground was to be acquired by the board of park commissioners for “park purposes”; and that the court may not “inquire into and go behind resolution No. 21” to consider the question of whether the strip was to be acquired for the purpose of providing a right of way to the new boulevard for the owner of an adjoining lot.

We believe that the inquiry of the courts is not limited alone to a consideration of whether the “use”-“park purposes”-which a city assigns in its condemnation proceedings as the use to be made of the property, is or is not a public use (if that were true there would really be no limitation on the power of cities to acquire property), but that a consideration may be had of all the surrounding facts and circumstances tending to show what is the actual, principal, and real use to be made of the property.

[2][3][4] Appellee contends that an examination into the “actual purpose” is in fact an inquiry into the “motives” of the board, and that the motives inducing public officers to do a thing which they have a right to do are not, under a number of Indiana authorities, open to judicial inquiry. If it had been sought to take appellant's property for park purposes exclusively, she would not be permitted to inquire into the motives which caused the officers to take it. In this case, however, the inquiry does not relate to the motives which caused the municipal officers to act, but to the...