Lostutter v. The City of Aurora

• Decision Date: 08 January 1891
• Docket Number: 14,639
• Parties: Lostutter v. The City of Aurora et al
• Court: Indiana Supreme Court

26 N.E. 184

126 Ind. 436

Lostutter v. The City of Aurora et al

No. 14,639

Supreme Court of Indiana

January 8, 1891

From the Dearborn Circuit Court.

Judgment affirmed.

H. D McMullen and W. R. Johnston, for appellant.

W. S Holman and W. S. Holman, Jr., for appellees.

OPINION

Elliott, J.

The appellant owns a lot abutting upon a public street, in the city of Aurora, on which she erected a dwelling-house, in which she and her husband, with their family, reside. The street has been improved, and has long been in general use. Years ago the owner of the lot now owned by the appellant dug and walled a well in the street in front of the lot, and this he did for his private benefit; the city had no interest, and took no part in the work. In time the old well was abandoned but another was dug by an owner of the lot, for his own convenience. In April, 1887, the city of Aurora, without any legal proceedings, and without the consent of the appellant, who had then become the owner of the lot, caused a platform to be constructed around the mouth of the well, and a pump to be placed in it. The appellant now asserts that the well constitutes a nuisance; that the city has no right to maintain a well in the street; that in doing so it has invaded her rights as an abutting owner, and she seeks an injunction prohibiting the city from maintaining the well.

It is undoubtedly the law that the abutter has a private property right in the street, distinct from that of the public, of which he can not be deprived without compensation. Common Council v. Croas, 7 Ind. 9; Haynes v. Thomas, 7 Ind. 38; State v. Berdetta, 73 Ind. 185, and cases cited; Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761; Terre Haute, etc., R. R. Co. v. Bissell, 108 Ind. 113, 9 N.E. 144; City of Lafayette v. Nagle, 113 Ind. 425, 15 N.E. 1; Kincaid v. Indianapolis, etc., Co., 124 Ind. 577, 24 N.E. 1066; Porter v. Midland R. W. Co., 125 Ind. 476, 25 N.E. 556. See, also, authorities collected in note 1, p. 528, Elliott Roads and Streets.

This established principle leads to the doctrine that the street can not be diverted from the use to which it was dedicated, and that an additional burden can not be laid upon the property without lawful authority, and after compensation has been paid or tendered. This much is clear. But an urban servitude is very comprehensive; it is always much more comprehensive than a suburban one. Kincaid v. Indianapolis, etc., Co., supra.

The immediate question which arises is whether the urban servitude is broad enough to vest in the municipality the right to maintain a well in the street.

The rights of a municipality vested in it as the owner of an urban servitude authorize it to use the street for many other purposes than that of travel. It is true that its primary character is that of a thoroughfare, upon which citizens have a free right to pass and repass, and it is also true that its character as a street can not be entirely destroyed without compensation to those injured by its destruction. See authorities cited in notes, pp. 662, 663, Elliott Roads and Streets. But while this is true, it is also true that the use of streets is not confined to that of travel; pipes for water and for gas may be laid in them; drinking fountains and hydrants may be placed in them, and cisterns may be dug in them. West v. Bancroft, 32 Vt. 367; Barton v. Comm., 3 Pa. 259; Branson v. City of Philadelphia, 47 Pa. 329; City of Cincinnati v. Penny, 21 Ohio St. 499; 2 Dillon Municipal Corp. (4th ed.) 690. See authorities collected in notes, ...