Leibole v. Traster
| Decision Date | 20 February 1908 |
| Docket Number | No. 6,109.,6,109. |
| Citation | 83 N.E. 781,41 Ind.App. 278 |
| Parties | LEIBOLE et al. v. TRASTER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kosciusko County; Levi R. Stookey, Special Judge.
Action by Ellen Traster against Frank W. Leibole and others. From a judgment for plaintiff, defendants appeal. Affirmed.
A. L. Cornelius and Deahl & Deahl, for appellants. Bertram Shane and North & Wagner, for appellee.
This is an action brought by appellee against appellants. The complaint is in two paragraphs. The first seeks to enjoin appellants from constructing a sewer through appellee's land. A restraining order was issued thereon by the court, and appellants constructed the sewer in defiance of the court's order. Appellee then filed a second paragraph, seeking to enjoin appellants from using the sewer and permitting water and sewerage to run through the same over appellee's land. The grounds of complaint in each paragraph are, first, that the construction of the sewer was illegal, in that the board of town trustees had not taken the preliminary steps as prescribed by law; second, the sewer, as constructed, was a nuisance, destroying the comfort and endangering the health of the tenants on appellee's land and persons in the vicinity, and depreciating the value of appellee's property. A trial was had, and on request special findings of facts and conclusions of law made, upon which judgment was rendered for appellee.
Numerous errors are assigned; but, in our opinion, the cause should be determined upon the question whether the board of town trustees in its preliminary proceedings omitted such necessary steps as to render the whole proceeding illegal and void. This question is presented upon the pleadings, the special finding, conclusion of law, and the evidence. It is unnecessary to take them up in detail, as presented. The sewer complained of was attempted to be constructed under act of the General Assembly of 1901, being chapter 179, of that session. See Acts 1901, p. 401, c. 179. The record shows conclusively that on the 21st day of July, 1903, upon petition, the board of trustees by unanimous vote passed a resolution for the construction of main drain sewers in the middle of Main and Pearl streets, beginning at Harrison street, and emptying in Turkey creek therein, and appointed one Henry Cook, civil engineer, to make survey and report the same to the board; that said Cook accepted said employment, and made a survey, and filed with the board a plat and profile showing the lines of said sewers. The plats and profiles showed by lines that said sewers began in the middle of Harrison street, and apparently extended along said Pearl and Main streets to Turkey creek. Said engineer also filed with the board a blank form of contract to be signed by the contractor, which contained certain specifications for construction of the sewers, including the kind and character of materials to be used in the same. This is all that the report contained. Upon the filing of this report said board caused the following notice to be published in a weekly newspaper of the town on the 13th day of August: “To Whom it may Concern: Notice is hereby given that the board of trustees of the incorporated town of Syracuse, Kosciusko county, Indiana, has declared its desire to construct a sewer beginning at the center of Harrison street running thence in the middle of Main street, and terminating in Turkey Creek ditch, at a point where said ditch crosses the lot line on the north side of Main street; also a sewer beginning at the middle of Harrison street, running thence in the middle of Pearl street; that a competent engineer has been appointed to survey the same, and has filed his report as required by law, and the board has fixed September 14, 1903, at 7 o'clock p. m., for the hearing of said report and the final determination of said board thereon.” No one appeared in response to said notice at the time fixed, and said board then by resolution declared that said sewers would be a public utility, and ordered advertisements for bids. The board did not determine what part of the cost should be paid out of the general fund of the town. The bids were received, and contract let to appellant Leibole, and he proceeded to the construction thereof. The sewers were completed and accepted by the board, and assessments of benefits and damages made. Appellee's lot was assessed for benefits in the sum of $5, and damages to said lot were assessed at $25. Appellee protested, and resisted efforts of the board and contractor in establishing and constructing the Main street sewer both in person and in the court. But over her protests the same was constructed in defiance of the court's restraining order. The record also shows that appellee had no actual notice of the proceedings and construction of the sewer until the same reached her property, and she immediately began to resist the work.
The act governing this proceeding authorizes incorporated towns to construct sewers for sanitary or drainage purposes and charge the expense thereof to the properties benefited thereby. Section 2 provides that, when a town desires to construct such sewers, the board of trustees shall by resolution declare its desire so to do at a regular meeting of such board, which resolution shall give a general description of the work, with the route and termini thereof, and shall appoint a competent civil engineer to survey the same. These provisions were substantially complied with in the case at bar. Section 3 is as follows: Section 4 provides that upon the filing of this report notice shall be published giving the substance of the resolution, the beginning, route, and terminus of the sewer; that an engineer had been appointed, and he had filed his report as required by law, and the board had fixed a certain day for the hearing and final determination thereof, which notice shall be published 30 days before the day set for such hearing. Section 5 provides that at the time fixed for said hearing any person interested may appear before said board and be heard, and may introduce evidence upon any question involved, and may be heard in person or by counsel. Upon the completion of said hearing the board shall determine the public utility of said drain, adopt, reject, alter, or amend such report, or refer the same back to the engineer for amendment, alteration, or reconsideration. Any affirmative action shall be by a two-thirds vote. At the same time the board shall determine what part, if any, of the cost of such sewer shall be paid out of the general fund of the town. Sections 6, 7, 8, and 9 provide for the letting of the contract, the bonds of the contractor, the appointment of supervising engineer, the inspection and acceptance of the work upon completion. Sections 10 and 11 provide for the assessments to pay for said work, and it is expressly provided that no property shall be assessed in excess of the benefits received. Other sections provide for the assessments and collection thereof, the issuance of bonds, and the authority to compel the construction of certain sewers upon petition. Section 16 provides that such sewers, when practicable, shall be constructed along streets and highways, but, when necessary, may be constructed through private property, and damages occasioned thereby assessed and paid as provided in said act. Also all property benefited may be assessed whether abutting upon the same or not; but such assessments are limited to benefits received as an outlet for drainage or sewerage.
Under the provisions of the latter section it is clear...
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