Lowe v. City of Lawrenceburg

• Decision Date: 28 May 1912
• Docket Number: No. 22,052.,22,052.
• Citation: 98 N.E. 637,177 Ind. 629
• Parties: LOWE et al. v. CITY OF LAWRENCEBURG et al.
• Court: Indiana Supreme Court

177 Ind. 629

98 N.E. 637

LOWE et al.

v.CITY OF LAWRENCEBURG et al.

No. 22,052.

Supreme Court of Indiana.

May 28, 1912.

Appeal from Circuit Court, Dearborn County; George E. Downey, Judge.

Action by Roger W. Lowe and others against the City of Lawrenceburg and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

Warren N. Hauck and Louis B. Ewbank, for appellants. N. S. Givan and T. S. Cravens, for appellees.

MONKS, J.

In a proceeding under section 8700 et seq., Burns 1908, before the common council of the city of Lawrenceburg, Ind., for the vacation of that part of Ash street between High and New streets, in said city, a distance of 132 feet, said common council on May 25, 1908, passed a final resolution confirming the original resolution vacating said part of Ash street. Afterwards, on September 29, 1908, appellants brought this action to enjoin the vacation of said street, and that appellees “be perpetually enjoined from excluding the plaintiffs and the public from using said part of Ash street.” Appellees' demurrer for want of facts was sustained to each paragraph of the complaint, and, appellants refusing to plead further, judgment was rendered against them on demurrer.

One of appellants' contentions is that “the action of the common council of said city in vacating said part of Ash street is void because section 8700, Burns 1908, under which the proceeding was brought, is unconstitutional and void so far as it makes the determination of the board of works final and conclusive.”

[1] It is settled in this state that an individual cannot maintain an action against another for closing or obstructing a public highway or street, unless he has himself sustained some particular or peculiar injury, differing in kind, and not common to the general public. McCowan v. Whitesides, 31 Ind. 235;Cummins v. City of Seymour, 79 Ind. 491, 41 Am. Rep. 618;Powell v. Bunger, 91 Ind. 64, 68, 69, and cases cited; Fossion v. Landry, 123 Ind. 136, 140, 141, 24 N. E. 96;Indiana, etc., R. Co. v. Eberle, 110 Ind. 542, 545-550, 11 N. E. 467, 59 Am. Rep. 225;Dantzer v. Indianapolis, etc., R. Co., 141 Ind. 604, 607-615, 39 N. E. 223, 34 L. R. A. 769, 50 Am. St. Rep. 343;Decker v. Evansville, etc., R. Co., 133 Ind. 493, 496, 33 N. E. 349;Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101, 107-109, 47 N. E. 332;Martin v. Marks, 154 Ind. 549, 555, 57 N. E. 249;Manufacturing, etc., Co. v. Indiana, etc., Co., 155 Ind. 566, 58 N. E. 851;Landes v. Walls, 160 Ind. 216, 222, 66 N. E. 679, and cases cited.

[2] It appears from the record that High and New streets are parallel with each other, and are 132 feet apart. Appellants' real estate does not abut upon Ash street, but abuts upon High street on the north side thereof and upon Maple street on the west side thereof, and is 160 feet east of the place where Ash street crosses High street. Maple street is parallel with Ash street,...