Ott v. Johnson, 3-773A96

Citation307 N.E.2d 523
Decision Date26 February 1974
Docket NumberNo. 3-773A96,3-773A96
PartiesHerbert OTT, Jr., and Treva Ott, et al., Appellants (Plaintiffs Below), v. Lee E. JOHNSON and Romona C. Johnson, Appellees (Defendants Below).
CourtCourt of Appeals of Indiana

Bloom, Bloom & Fleck, Columbia City, for appellants.

Snodgrass, Burner & Lambert, Warsaw, for appellees.

GARRARD, Judge.

The facts were stipulated. In 1967 the Town of Pierceton adopted an ordinance prohibiting, as a nuisance, the placing of mobile homes within the town corporate limits, except in mobile home parks approved by the Indiana State Board of Health.

In 1972, the defendants, owners of Lot No. 2 in Gradeless Subdivision in the town, began construction of concrete slabs and a foundation to receive the Monarch 12 foot by 61 foot mobile home which they owned and had been living in on rented space in a mobile home park west of Pierceton.

At that time plaintiffs Ott and Ott, owners of Lot No. 3 in Gradeless Subdivision, gave both verbal and written notice to defendants to the effect that they would consider defendants' proposed actions the creation of a nuisance to the Otts' damage.

Defendants thereafter brought their home to the lot, removed the wheels, axles and towing tongue and installed it on the concrete block foundation previously prepared. 2 X 4's were then installed to fill in the space "between the underside of the unit at the top of the wall". Then metal skirting was placed all around the exterior. Since the unit was placed on the lot, it has been continuously connected with the town's water and sewer service.

It also appears that the Pierceton Town Board elected to take no action against defendants in connection with the ordinance, and that during the time involved and for at least five years prior thereto, a housing unit of the same type and style had been installed on Lot No. 1 in Gradeless Subdivision, next to defendants' lot and within 100 feet of the Ott lot.

Shortly before the actual installation, this action for injunction was commenced by sixteen property owners in the town (twelve of whom apparently consist of husband-wife combinations) including the Otts. A pretrial order was entered by agreement containing stipulations of fact and submitting the case without further evidence. Neither party requested the trial court to make special findings pursuant to Rule TR. 52, IC 1971, 34-5-1-1. The court denied plaintiffs' request for a permanent injunction, and overruled and denied plaintiffs' motion to correct errors. This appeal followed.

Plaintiffs' first assignment is that the decision is contrary to the evidence. Since plaintiffs had the burden of proof and suffered a negative judgment, this assignment does not present a reviewable issue. State Farm Life Insurance Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886; Senst v. Bradley (1971), Ind.App., 275 N.E.2d 573.

The remaining assignment is that the decision is contrary to law.

The ordinance in question reads as follows:

"ORDINANCE NO. 114

"WHEREAS, the Board of Trustees of the Town of Pierceton, Indiana, has determined that the erection, placing or locating of a mobile home, as hereinafter defined, within the corporate limits of the Town of Pierceton, Indiana, in other than a mobile home court, trailer camp, or trailer court, approved by Indiana State Board of Health, constitutes a public nuisance;

"NOW, THEREFORE, BE IT ORDAINED by the Town Board of Pierceton, Indiana;

1. That any person, firm, or corporation who shall erect, place or locate a mobile home, as hereinafter defined, upon any real estate situate within the corporate limits of the Town of Pierceton, Indiana, in other than a mobile home court, trailer camp, or trailer court, approved by Indiana State Board of Health, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than One Dollar ($1.00) nor more than Ten Dollars ($10.00) for each and every offense thereof.

2. DEFINITION: A mobile dwelling unit shall name (sic) living quarters such as house trailers, truck bodies, tents, bus bodies, railroad cars, shacks and improvised shelters which may be moved by tractor, truck, automobile or horses or can be carried, transported or towed from one place to another without the use of regular house moving equipment; that use for such living quarters shall include the acts of sleeping, preparation of meals or any sanitary measure such as bathing, dish washing or laundering clothing or any natural or performed operation which provides waste material objectionable from a nuisance standpoint.

3. That each day that a mobile home is so located within the corporate limits of the Town of Pierceton, Indiana, shall constitute a separate offense under the terms and provisions of this ordinance.

4. That the effective date of this ordinance shall be from and after passage and publication thereof in the manner prescribed by law.

"Passed and adopted by the Board of Trustees of the Town of Pierceton, Indiana this 13th day of November, 1967."

The parties stipulated that they do not here wish to question the constitutionality of the ordinance. Such a stipulation, of course, to the extent that it purports to render the ordinance valid by agreement, cannot be binding upon the courts. Yelton v. Plantz (1948), 226 Ind. 155, 164; 77 N.E.2d 895. Although substantial issues might be raised regarding the ordinance, 1 we have concluded to abide by the parties' wishes since a constitutional determination does not appear necessary to the outcome. Saloom v. Holder (1973), Ind.App., 304 N.E.2d 217.

Was the decision of the trial court refusing the injunction upon this ordinance and the stipulated facts contrary to law?

Plaintiffs correctly urge us as a general proposition that in construing a statute, the legislative intent must be ascertained and given effect, and where the statute declares that a term shall mean certain things, the courts are bound by that definition even though otherwise the language would be held to mean a different thing. Town of Kewanna Water Works v. Indiana Employment Security Board (1961), 131 Ind.App. 400, 171 N.E.2d 262. In construing ordinances, the rules applicable to construing statutes apply. Woerner v. City of Indianapolis (1961), 242 Ind. 253, 177 N.E.2d 34, cert. den. 368 U.S. 989, 82 S.Ct. 605, 7 L.Ed.2d 526.

Despite the typographical "name" for "mean" in Section 2, and the omission of the term "nuisance" from its purview, the ordinance is clearly a penal ordinance proscribing certain conduct as a public nuisance and providing penalties for its violation. As such, the ordinance must be strictly construed. Loftus v. State (1944), 222 Ind. 139, 52 N.E.2d 488; Dowd v. Sullivan (1940), 217 Ind. 196, 27 N.E.2d 82. Furthermore it cannot be said, nor is it contended, that mobile homes constitute nuisances, per se.

Appellants argue that the decision here should be controlled by our opinion in Bowman v. Holsapple (1973), Ind.App., 292 N.E.2d 274, where a defendant's mobile home sans wheels was determined to remain a mobile home. Bowman, however, involved interpretation of the comprehensive zoning ordinance of Allen County. The ordinance did regulate the location of "mobile homes" and contained a definition clause. The plaintiffs appealed the grant of an improvement location permit for defendant's "mobile home" to the Board of Zoning Appeals, which sustained their position. On the following certiorari proceeding which was appealed to this court, we held that under the evidence and the language of that ordinance there was evidence from which the Zoning Board could reasonably have reached its conclusion, and therefore it was error for the trial court to substitute its judgment for that of the Board.

Furthermore, in Bowman, 'mobile home' was defined as:

"... a single family dwelling designed for transportation after fabrication on streets and highways on its own wheels or on flat bed or other trailers, and arriving at the site ... complete and ready for occupancy, except for minor and incidental unpacking for assembly operations, location on jacks or...

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4 cases
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