Park Hill Development Company v. City of Evansville
| Decision Date | 19 April 1921 |
| Docket Number | 23,475 |
| Parties | Park Hill Development Company v. City of Evansville et al |
| Court | Indiana Supreme Court |
From Vanderburgh Superior Court; F. M. Hostetter, Judge.
Action by the Park Hill Development Company against the City of Evansville and others. From a judgment for defendants, the plaintiff appeals.
Reversed.
Robinson & Stilwell, Charles F. Werner and Walton M. Wheeler, for appellant.
J. R Brill, F. H. Hatfield, J. W. Brady and E. Q. Lockyear, for appellees.
The appellant company brought this action against the appellee city and certain of its officers, who are also appellees, to enjoin the appellees from enforcing or attempting to enforce a certain ordinance of the appellee city of Evansville, and to have said ordinance declared invalid. An amended complaint was filed, in a single paragraph. The trial court sustained the demurrer of appellees to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action, to which ruling the appellant company excepted. And upon the refusal of appellant to plead further final judgment was rendered that the appellant take nothing, and that the appellees recover their costs. From this judgment the appellant duly perfected a term appeal.
The substance of the amended complaint is that appellant is a corporation duly organized for the purpose, among others, of establishing and maintaining a cemetery in Vanderburgh county, Indiana; that in pursuance of such purpose the appellant purchased a tract of forty-five acres of land, located northwest of the city of Evansville, about one mile outside of and beyond the city limits; that it "is in a sparsely settled neighborhood, that said land is high land, is very broken and unfit for residence or business purposes, and is suitable only for the purpose of a cemetery; that there are no residences within said city limits nearer than one mile from said land; that said land is composed of hills and deep ravines, and that the natural drainage of said land is toward the north and west, the same being in the direction away from the city, and away from any other lands or park owned by said city, and said drainage of said land is far removed and has no connection whatever with the water supply of said city, or any of said city's parks, or other property, or the water supply of any of the inhabitants of said city"; that in February, 1917 (three months before the ordinance complained of was passed), appellant bought this land for $ 30,000, and paid for it in cash, and thereafter expended $ 10,000 in grading and improving the land for a cemetery, and caused it to be platted in burial lots, with roads and boulevards therein, and has begun the sale of such lots, but still has many unsold; that appellees knew of these expenditures and the purpose of them, and by their acts led appellant to believe that no objections would be interposed to the location and maintenance of said cemetery, and appellant made said expenditures in reliance on such acts and conduct; that appellant's said lands lie on the west slope of a ridge, the top and east slope of which, owned by the appellee city, form part of Mesker Park, a tract of 200 acres, most of which is wooded, that is used for purposes of amusement and recreation; that just west of the top of this ridge, but depressed ten feet below the surface of the adjacent lands, runs one of the most important highways leading into the city of Evansville, which is sixty feet wide, and separates the said park from appellant's lands, and from the St. Joseph Cemetery, north of such lands; that appellant's lands are bounded on the north and west by a tract of 100 acres, known as St. Joseph Cemetery, which is now used as a cemetery and has been so used for more than thirty years last past, and is also separated from said Mesker Park only by the highway, sixty feet wide; and the park occupies the same relative position to St. Joseph Cemetery as it does to the property of appellant; that many hundreds of bodies have been interred in the St. Joseph Cemetery, and interments are now made therein almost daily, and that the city now permits, and for many years last past has permitted, the interment of bodies in St. Joseph Cemetery, and said cemetery is constantly used as a place of burial, and burials are constantly being made therein within distances much less than 1,000 feet from said city park; that besides being bounded on the north and west by St. Joseph Cemetery, and on the northeast by the highway which separates it from the park, appellant's land is bounded on the southeast by another highway, so that the two highways and the cemetery completely surround it; that about five acres of the top of the ridge, immediately east of the highway, overlooks appellant's lands (and part of St. Joseph cemetery), but it is not possible to see appellant's lands from any other place in the park, and there is a thick growth of trees and shrubbery on appellant's property near the highway, next to the park; that a street car track or switch by which persons are carried to the park is located upon and occupies a large part of said ridge; that there are now within the corporate limits of said city, cemeteries, some owned and maintained by the city, and others by corporations and individuals with the consent of the city, which are within less than 1,000 feet of streets, walks and public grounds of said city, and are maintained in the same manner in which appellant intends to maintain the cemetery on its lands; that Oak Hill Cemetery is owned by the city, and is "immediately adjacent to said city, and within less than one hundred feet from the public streets and walks in said city, and residences and public places in said city," and that the appellee city has for many years last past permitted, and now permits, the interment of bodies therein, within less than 100 feet of all of said places; and that the ordinance (hereafter set out) "was enacted * * * for the sole purpose of preventing any competition with the defendant city in the interment of the dead, and was enacted at the solicitation of the trustees of the Oak Hill Cemetery and other cemeteries * * * owned, operated and maintained by the (appellee) city * * * in order to prevent competition with said city in the sale of burial lots to the general public and in the maintenance of a cemetery."
It is alleged that on May 15, 1917, an ordinance which had been enacted by the common council the week before was approved by the mayor, which reads as follows:
It was further alleged that the appellee members of the board of health had publicly declared that they would refuse to issue any burial permits for the burial of any one in the cemetery on appellant's lands, and that appellees were threatening to, and, unless restrained, would prevent the interment of bodies therein. Many propositions of law, a number of matters advanced as matters of judicial knowledge, and several conclusions of fact as to the necessary effect of the facts pleaded, were also alleged, but the rights of the parties depend upon the law as applied to the foregoing facts, which (for the purposes of the demurrer) are admitted by appellee's demurrer to be true.
The power (if any) under which the common council of Evansville acted in passing the ordinance was conferred by the following provisions of the statute: ...
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- Park Hill Dev. Co. v. City of Evansville