Liebole v. Traster

• Decision Date: 20 February 1908
• Docket Number: 6,109
• Citation: 83 N.E. 781,41 Ind.App. 278
• Parties: LIEBOLE ET AL. v. TRASTER
• Court: Indiana Appellate Court

83 N.E. 781

41 Ind.App. 278

LIEBOLE ET AL. v. TRASTER

No. 6,109

Court of Appeals of Indiana

February 20, 1908

From Kosciusko Circuit Court; Levi R. Stookey, Special Judge.

Suit by Ellen Traster against Frank W. Liebole and another. From a decree for plaintiff, defendants appeal.

Affirmed.

Deahl & Deahl and A. L. Cornelius, for appellants.

Bertram Shane and North & Wagner, for appellee.

OPINION

HADLEY, P. J.

This is a suit 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 sewage to run through the same over appellee's land. The grounds of complaint in each paragraph are (1) 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; (2) that 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 and conclusions of law made, upon which a decree was entered 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 proceedings illegal and void. This question is presented upon the pleadings, the special findings, conclusions 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 the act of 1901 (Acts 1901, p. 401, § 4443a et seq. Burns 1901). The record shows conclusively that on July 21, 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, and appointed Henry Cook, as civil engineer, to make survey and report the same to the board; that said Cook accepted said employment, made a survey, and filed with the board a plat and profile showing the lines of said sewers; that 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; that said engineer also filed with the board a blank form of contract to be signed by the contractor, which contained certain specifications for the 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 August 13:

"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. 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. Said board then, by resolution, declared that said sewers would be of 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 Liebole, 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, both in person and in the courts, the efforts of the board and contractor in establishing and constructing the Main street sewer. But the same was constructed over her protest and 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 (Acts 1901, p. 401, § 4443a et seq. Burns 1901) authorizes incorporated towns to construct sewers for sanitary or drainage purposes, and to charge the expense thereof to the properties benefited thereby. Section two (§ 4443b, supra) 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 three (§ 4443c, supra) is as follows: "The said engineer shall make a careful survey of the proposed sewer, and report in writing to the board of trustees of such town, the following facts: First. An accurate description of the beginning, route, terminus and fall of the proposed sewer or sewers, including the outlet of the same. Second. Detailed specifications, plans and profile for the proposed sewer. Third. The kind of material to be used and the size of the sewer proposed. Fourth. An estimate of the cost of the construction of the same. Fifth. A description of the district which will be benefited by the construction of the proposed sewer, so specifically that all property owners to be affected thereby may be informed whether or not any property owned by them will be affected by the proposed improvement. Sixth. A description of any lands which will probably be damaged by the proposed improvement, name of the owner of such lands, together with the probable amount of the damage." Section four (§ 4443d, supra) provides that, upon the filing of this report, notice shall be published, setting forth 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 that the board had fixed a certain day for the hearing and final determination thereof, which notice shall be published thirty days before the day set for such hearing. Section five (§ 4443e, supra) 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 six, seven, eight and nine (§§ 4443f-4443i, supra) provide for the letting of the contract, the bond of the contractor, the appointment of supervising engineer, and the inspection and acceptance of the work upon completion. Sections ten and eleven (§§ 4443j, 4443k, supra) 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 sixteen (§ 4443p, supra) 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 sewer or not; but such assessments are limited to benefits received as an outlet for drainage or sewage. Under the provisions of the latter section it is clear that appellant had authority, if it was necessary, to construct said sewer through the lands of appellee, if its proceedings were legal and the manner of construction did not constitute a nuisance.

As we have heretofore shown, the board of trustees almost wholly failed to comply with the requirements of section three: (1) The report of the engineer did not show an accurate description of the beginning, route, terminus, fall and outlet of the proposed sewer. These facts, except the latter may perhaps be...