Linville v. Shelby County Plan Commission, 969S196
| Decision Date | 09 May 1972 |
| Docket Number | No. 969S196,969S196 |
| Citation | 258 Ind. 467,281 N.E.2d 884 |
| Parties | Galen LINVILLE, Appellant, v. The SHELBY COUNTY PLAN COMMISSION, Appellee. |
| Court | Indiana Supreme Court |
Donald L. Brunner, Shelbyville, Brunner, Brown & Brunner, Shelbyville, of counsel, for appellant.
Fred V. Cramer, Shelbyville, Adams & Cramer, Shelbyville, of counsel, for appellee.
Appeal from a judgment of the Shelby Circuit Court granting a permanent injunction enjoining and prohibiting the defendant (appellant) from operating, keeping or maintaining an existing automobile wrecking yard and/or junk yard on his premises and ordering the abatement, abandonment and removal of the same.
The defendant had made use of his property for both farming and in the manner enjoined since prior to the enactment of the applicable zoning ordinance. The enjoined use is a non-conforming use under the ordinance. By his answer to the complaint, the defendant denied that his use was in violation of the ordinance, and his evidence was directed to a showing of his use, in the same manner enjoined, prior to the adoption of the ordinance and to the relative equities, in that the defendant's use of his property was an obvious and known fact prior to and at the time the complaining witnesses first devoted their neighboring properties to residential use.
The grounds of the defendant's motion for a new trial that have been pursued in this appeal charge that the decision is not sustained by sufficient evidence and is contrary to law. With regard to the second of such grounds, he has vigorously and ably argued that the Board of Commissioners was without authority to give retroactive effect to the zoning ordinance and thus legislate away his right to continue the use of his property. This, either by reason of the absence of specific authority in the legislative grant under which the ordinance was adopted, or by reason of the proscriptions of Article, I, § 21 of the Constitution of Indiana and the 5th Amendment to the Constitution of the United States, or both. Defendant's arguments are persuasive, but they connot control this appeal. This issue was not before the trial court under the pleadings. The only issue before the court was whether or not the defendant was in violation of the ordinance, a portion of which provided, '* * * No junk or automobile wrecking yard shall be operated or maintained on a non-conforming site for more than two years after the effective date of this ordinance, * *...
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Hauck v. Second Nat. Bank of Richmond
...did not do and therefore cannot be heard to complain. If any error there be, it has been effectively waived. Linville v. Shelby County Plan Commission, (Ind.1972) 281 N.E.2d 884. The judgment is therefore SULLIVAN, J., concurs. WHITE, J., concurs in result. 1 'ITEM VII. I constitute and app......
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Field v. Area Plan Commission of Grant County, Ind.
...statute involved here, IC 18-7-4-91, our Supreme Court upheld the trial court's injunction. See Linville v. Shelby County Plan Commission (1972) 258 Ind. 467, 281 N.E.2d 884 (affirming trial court's judgment granting an injunction prohibiting operation and maintenance of an automobile wreck......
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...waives that issue on appeal. Clarkson v. Dept. of Insurance (1981), Ind.App., 425 N.E.2d 203, 206. See Linville v. Shelby County Plan Comm'n (1972), 258 Ind. 467, 281 N.E.2d 884 (constitutional issue not reviewable on appeal where it was not before trial court under the pleadings). Not only......
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...Co. of Gary, Inc. (7th Cir.1976), 531 F.2d 797, cert. denied 429 U.S. 885, 97 S.Ct. 237, 50 L.Ed.2d 166; Linville v. Shelby Co. Plan Comm. (1972), 258 Ind. 467, 281 N.E.2d 884. (We additionally express grave doubt as to the creditors' standing to raise such an issue. See, e.g., Randall v. S......