Klein v. Nugent Gravel Co.

• Decision Date: 21 April 1904
• Docket Number: 20,368
• Citation: 70 N.E. 801,162 Ind. 509
• Parties: Klein v. Nugent Gravel Company
• Court: Indiana Supreme Court

70 N.E. 801

162 Ind. 509

Klein v. Nugent Gravel Company

No. 20,368

Supreme Court of Indiana

April 21, 1904

From Gibson Circuit Court; O. M. Welborn, Judge.

Action by the Nugent Gravel Company against Anthony J. Klein. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under subdivision 2, § 1337j Burns 1901.

Reversed.

W. W Ireland and William Reister, for appellant

J. G Owen and G. K. Denton, for appellee.

OPINION

Jordan, J.

This cause was originally appealed to and decided by the second division of the Appellate Court, and was transferred under the provisions of the second subdivision of § 1337j Burns 1901, on the ground that the opinion contravened a ruling precedent of the Supreme Court. As preliminary, it may be stated that the transfer was not ordered because we believed that, under the facts stated in the opinion of the Appellate Court, the judgment of reversal was not a correct result, but for the reason that some of the declarations or statements of legal principles contained in the court's opinion leading up to the ultimate conclusion contradicted ruling precedents or decisions of the Supreme Court. Especially may this be said to be true in respect to the holding in Adams v. City of Shelbyville, 154 Ind. 467, 49 L. R. A. 797, 77 Am. St. 484, 57 N.E. 114. The very object of the statute under which transfers from the Appellate to the Supreme Court are authorized upon application of the losing party is to enable the Supreme Court, when necessary, to control the statements or declarations of legal principles contained in the opinion of the Appellate Court in the particular case. Barnett v. Bryce Furnace Co., 157 Ind. 572, 62 N.E. 6.

This case was successfully prosecuted in the lower court by appellee to foreclose a street assessment lien against the property of appellant, arising out of the improvement of a public street in the city of Evansville, Indiana, under the provisions of what is commonly known as the Barrett law.

The assignment of errors is based upon the overruling of appellant's demurrer to the complaint, and denying his motion for a new trial.

The facts disclosed by the complaint and established by the evidence are substantially as follows: The common council of the city of Evansville on the 10th day of February, 1890, by a resolution duly adopted, ordered that Water street be improved from Ingle street to Fulton avenue, a distance of four blocks. Water street runs east and west, and the abutting real estate situated on the south side thereof is adjacent to the Ohio river. The street is not of uniform width. From the east terminus, running west for a distance of two blocks, it is 100 feet wide. Along the third block it is forty feet wide, and along the fourth block the street varies from sixty to one hundred feet in width. The resolution or ordinance adopted by the council provided that a strip or part of the street twenty-eight feet wide on the north side thereof from the curb line should be improved. The sidewalk on the north side of the street is twelve feet wide, which, together with the twenty-eight feet of the roadway ordered improved, made the improvement in question extend forty feet from the property line on the north side of the street, and left a strip sixty feet in width on the south side of said street along the first and second blocks unimproved. A strip of the street twenty to sixty feet in width, situated on the south side, along the fourth block, was also left unimproved. Or, in other words, the only part of the street which was improved, under the proceedings, the entire width thereof was along the third block, counting from the east. Such steps appear to have been taken by the common council as resulted in a contract being let to appellee for making the improvement.

Among other things, the complaint avers and shows that upon the completion of the work by appellee, the city engineer, by the direction of the common council, made a final estimate of the total cost of the improvement, and filed his report, showing the following facts: (1) That the total cost of the improvement was $ 5,901.10; (2) that the average cost per running front foot of the whole length of the part of the street improved was $ 4.25 (this average cost is shown to have been obtained by dividing the whole cost of the improvement by the length of the part of the street improved, which length was 1,388 1/2 feet); (3) the name of each person owning property abutting on that part or side of the street improved, the name of appellant being one of the property owners stated in the report; (4) the number of front feet owned by the respective property owners, the number of feet owned by appellant being 106; (5) the amount of the total cost of the improvement due on each lot and parcel of ground abutting or bordering on the part or side of the street improved, which amount is shown to have been estimated and fixed by multiplying the average cost price per running front foot by the number of running front feet of the several lots and parcels of ground respectively abutting on the north side of said Water street in the first, second, and fourth blocks from the east. The amount apportioned by the engineer in his report to each lineal foot of property situated on said north side along each of these blocks was $ 4.25. The property on the opposite side of the street along the first, second, and fourth blocks, which did not immediately abut on the strip improved, was not assessed for the cost of the improvement. In the third block from the east, the abutting property on both sides of the street was assessed.

The amount of the assessment for each foot of the several pieces of property in this block was obtained by multiplying the whole number of running front feet of each lot or parcel of ground on each side of the street for the entire length of the improvement by one-half the cost per running foot, or, in other words, the assessment made per running foot on the abutting property on each side of the street in this block was $ 2.12 1/2, or one-half of $ 4.25, obtained in the manner hereinbefore stated. Appellant's property, as is shown is situated on the north side of the street, in the first block from the east, fronting on said improvement, and the amount assessed against his property was estimated and arrived at by multiplying the number of front feet on that side owned by him, to wit, 106, by $ 4.25, which made the amount of his assessment $ 450.50; being the amount, together with interest and attorney's fees, sought to be recovered in this action. The report set forth a full description, together with the owner's name, of each lot and parcel of ground...