Kessler v. City of Indianapolis

• Decision Date: 19 July 1927
• Docket Number: 24,831
• Citation: 157 N.E. 547,199 Ind. 420
• Parties: Kessler v. City of Indianapolis et al. [*]
• Court: Indiana Supreme Court

157 N.E. 547

199 Ind. 420

Kessler v. City of Indianapolis et al. ^[*]

No. 24,831

Supreme Court of Indiana

July 19, 1927

1. EMINENT DOMAIN.---Appellate Court may inquire as to actual "use" for which property is intended.---In an eminent domain proceeding courts are not limited to consideration of whether the use assigned therein is a public use, but may inquire whether the actual "use" for which the property is to be taken is or is not a public use and consideration may be given to all the surrounding facts and circumstances tending to show what was the actual and real use to be made of the property. p. 426.

2. EMINENT DOMAIN.---Reviewing Court may inquire into purpose of eminent domain proceeding as distinguished from motives of acting officials.---In an eminent domain proceeding by a municipality, the court may inquire into the purpose of the proposed taking as distinguished from the motives of the officials in taking such action. p. 426.

3. EMINENT DOMAIN.---The purpose for which private property is condemned is the very basis of the right to condemn. p. 426.

4. EMINENT DOMAIN.---The power of eminent domain may be exercised only for a public purpose, as the taking of private property for a private use would violate the constitutional rights of the owner. p. 427.

5. EMINENT DOMAIN.---The power of eminent domain cannot constitutionally be delegated for an essentially private purpose, even though a public purpose will be incidentally served thereby. p. 427.

6. EMINENT DOMAIN.---Incidental private benefit does not destroy public character of use of property condemned.---A proposed use of property sought to be condemned which is in itself of a public character justifying the exercise of the power of eminent domain does not lose its character as such by the fact that the use will incidentally result in a private benefit. p. 427.

7. EMINENT DOMAIN.---Power of eminent domain cannot be exercised for a private purpose.---Where the intention to confer a private use or benefit forms the purpose, or a part of the purpose, of a proceeding to appropriate land, the power of eminent domain may not be exercised, unless the private purpose can be separated from the public purpose, and the power exercised only for that purpose. p. 427.

8. EMINENT DOMAIN.---A city may not exercise the power of eminent domain to take private property for the benefit of an individual where such intent forms an inseparable part of the purpose of the taking. p. 427.

9. EMINENT DOMAIN.---Evidence held to show private purpose in condemnation proceeding.---Evidence held to show that intent of city in condemnation proceeding was in part for the purpose of affording an adjoining landowner access from his lot to a boulevard and therefore for a private purpose and invalid. p. 427.

10 TRIAL.---In passing on defendant's motion for judgment on the evidence, only evidence supporting the complaint should be considered.---In passing on defendant's motion for judgment (which is in the nature of a demurrer to the evidence), the court should consider only the evidence tending to sustain the complaint; such a motion admitting for the purpose of the determination, that the facts shown in plaintiff's evidence are true. p. 429.

11. EMINENT DOMAIN.---Power of eminent domain may not be exercised for private use or benefit if the public use is merely contingent and prospective.---In a condemnation proceeding, if the proposed public use is contingent and prospective, and a private use or benefit is actual and present, the public use would be incidental to the private use and the power of eminent domain could not lawfully be exercised. p. 429.

12. INJUNCTION.---Purpose of condemnation proceedings determines right of municipality to appropriate property.---A permanent injunction should not be rendered which would forever prevent a city from appropriating specific property which may be needed for future public improvements even though an injunction to restrain condemnation proceedings under an ordinance whose purpose is to procure private benefit is proper. p. 430.

From Marion Superior Court (A 23,495); Linn D. Hay Judge.

Suit by Rose M. Kessler against the city of Indianapolis and another to enjoin the city from proceeding with a condemnation proceeding to appropriate plaintiff's property. From a judgment for the defendants the plaintiff appeals.

Reversed.

Frank C. Dailey, Samuel D. Miller, William H. Thompson, Albert L. Rabb, Thomas D. Stevenson and Perry E. O'Neal, for appellant.

Telford B. Orbison, for appellees.

OPINION

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 lot 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 appellee's 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...