McClurg v. Carte, Inc.

• Decision Date: 16 October 1970
• Docket Number: No. 270S38,270S38
• Parties: Donald McCLURG, at al., Appellants, v. CARTE, INC., Brantner Development Corp., Ronald G. Turner and Iona Turner, husband and wife, the West End Building and Loan Association of Richmond, Indiana, Appellees.
• Court: Indiana Supreme Court

Page 854

262 N.E.2d 854

255 Ind. 110

Donald McCLURG, at al., Appellants, v. CARTE, INC., Brantner Development Corp., Ronald G. Turner and Iona Turner, husband and wife, the West End

Building and Loan Association of

Richmond, Indiana, Appellees.

No. 270S38.

Supreme Court of Indiana.

Oct. 16, 1970.

George H. Tripp, Richmond, for appellants.

George R. Reller, Reller, Mendenhall, Kleinknecht & Milligan, Richmond, for appellees.

ARTERBURN, Judge.

This is an appeal from an action to vacate streets and public grounds in the City of Richmond, Indiana. The Petitioners are all the abutting property owners on the streets and public grounds proposed to be vacated and are all those persons particularly interested therein. The appellants are the remonstrators, who are owners of other property in the addition. The trial court, after hearing the remonstrators, entered judgment vacating said streets and public grounds involved.

Appellants, the remonstrators below, contend that none of the petitioners testified that the petitioners 'desired' to vacate the streets and public grounds in question. In our opinion this is a rather frivolous contention in view of the fact that petitioners in their petition brought the proceedings and requested that the particular streets and public grounds be vacated. It would be rather preposterous for this Court to assume they did not desire to do what they were petitioning a court to do. Additionally we point out that the remonstrators did not deny that the petitioners desired to have the streets and public grounds vacated.

Appellants, remonstrators below, next contend that the statute was not followed in the giving of notice to the 'owners of abutting land' affected by the vacation proceedings. Burns' Indiana Stat.Anno. § 48--903.

The statute provides that the petitioners shall provide the clerk with the names, addresses, copies of notice, and postage for the purpose of notifying such abutting landowners. However, in this case it so happens that the petitioners are all of the abutting landowners, and it would be a futile, useless, and superfluous act for the petitioners to notify themselves of what they were doing in court. We find no merit whatever in such a contention. The parties interested were all in court by their own wishes and acts. The requirement of the notice is to give interested abutting property owners the right and opportunity to claim damages and have the same fixed. In this case no claim for damages were made.

It is next urged that the petitioners failed to prove by a preponderance of the evidence that 'justice' required the vacation of the streets and public grounds in question. Burns' Indiana Stat.Anno. § 48--903. 'Justice', as used in the statute, is not defined other than those grounds set forth for a remonstrance under Burns' § 48--904, namely:

'Remonstrance--Contents.--When, in any proceeding for the vacation of any street, alley, or part thereof, or other public ground, or of any block or blocks of lots, remonstrance is permitted to be made, any person or persons feeling himself or themselves aggrieved by the proposed vacation may remonstrate in writing upon any one (1) or more of the following grounds and no other, to wit:

First. Because such addition, subdivision or part thereof, or street or alley therein, or other public ground, so sought to be vacated is necessary to the growth of the town or city in which the same is situate or which the same adjoins.

Second. That the proposed vacation will leave the real estate of the remonstrant or remonstrants, within any such town or city, without ingress or egress by means of a public way or street.

Third. That such vacation will cut off the public's...