Pennsylvania Co. v. Cole

• Decision Date: 10 October 1904
• Docket Number: 8,923.
• Citation: 132 F. 668
• Parties: PENNSYLVANIA CO. v. COLE et al.
• Court: United States Circuit Court, District of Indiana

132 F. 668

PENNSYLVANIA CO. v. COLE et al.

No. 8,923.

United States Circuit Court, D. Indiana.

October 10, 1904

Zollars & Worden, for complainant.

S. R Alden and W. H. Shambaugh, for defendants.

ANDERSON District Judge.

On October 23, 1893, the Pennsylvania Company, complainant filed its bill, and on February 11, 1896, its amended bill against Frank E. Cole and the city of Ft. Wayne, defendants to restrain and enjoin the defendants from enforcing or attempting to enforce, by suit, foreclosure, precept, or in any other manner, certain assessments for sewer improvements, which assessments are alleged to be illegal and void, as against three tracts of land described in the amended complaint, and praying, also, that the title of the complainant to the said three tracts of land be quieted, as against all claims by the defendants arising from said assessments, and that the cloud on complainant's title thereby created be removed. To this amended bill the defendants filed answers, to parts of which the exceptions of the complainant were by this court sustained. Thereupon amended answers were filed, and, after replication, the evidence was taken, and the cause is not submitted on final hearing.

The facts material to be considered are substantially these:

On the 12th day of July, 1892, three resolutions were introduced into the common council of the city of Ft. Wayne for the construction of three sewers, one connecting with the other, and constituting, when completed, a continuous sewer; the three parts of said sewer being, respectively, four, five, and six feet in diameter. The assessments for the construction of the six-foot sewer are the ones in controversy here. The resolution for the construction of the six-foot sewer is in these words and figures:

'Be it resolved by the common council of the city of Fort Wayne (Two-thirds of all the members thereof concurring), that a 6-foot double-ring bring sewer with the necessary manholes, catch basins, and connections, be constructed on the following streets and alleys, commencing at the brick sewer in the alley between Glasgow avenue & Wabash ave., thence south along said alley to Randall st., thence west on Randall st. to Grant ave., thence south on Grant ave. to Alliger st., thence south on Alliger st. to Eliza st., thence west on Eliza st. to Walton ave., thence south on Walton ave. to Hayden st., thence west on Hayden st. to Winter st., thence south on Winter st. to the south line of the right of way of the Wabash Railway; and be it further

'Resolved (this council hereby declaring such improvement necessary), that the cost and expenses thereof, including services of inspector and expenses of advertising, except so much as is occupied by the crossings of streets and alleys, be assessed against and collected from the owners of lots and lands benefited thereby, according to the provisions of chapter 118 of the Acts of the General Assembly of the state of Indiana, approved March 8th 1889, and all other laws supplemental thereto, and that said improvement shall be made under the supervision and to the satisfaction of the city civil engineer and the common council, and in accordance with the plans and specifications on file at the office of said engineer; and be it further

'Resolved, that the city civil engineer set the proper stakes, and advertise for three weeks, in the Fort Wayne Daily Sentinel, that sealed proposals will be received by this council, at a meeting to be held on the-- -- -day of

-- --, 189-, for the execution of said work.

'Paul E. Wolf, Councilman from 8th Ward.'

The Pittsburg, Ft. Wayne & Chicago Railway Company was then and has since remained the owner in fee, and the Pennsylvania Company the lessee under the lease for 999 years, of the thee tracks of land described in the amended complaint, and against which the assessments for the construction of said six-foot sewer are attempted to be levied and enforced. Under the terms of said lease the Pennsylvania Company assumed and agreed to pay all claims of every sort, including all taxes and assessments that might be levied or in any wise assessed against the property of said Pittsburg, Ft. Wayne & Chicago Railway Company.

The three resolutions for the construction of the four, five, and six foot sewers were, on said 12th day of July, 1892, referred to a special committee of the common council, which reported to the council on July 25th that, if the sewer should be constructed, it should be on the route described in the resolution. On August 23,1892, the common council passed a resolution appointing a special committee to meet on the 26th day of September to hear objections to any and all improvements ordered by the common council, that the committee report such objections to the common council, and that the clerk cause notice to the property owners to be given in the Ft. Wayne Daily Sentinel as by law directed. The city clerk caused a notice to property owners to be published in the Ft. Wayne Daily Sentinel, a newspaper of general circulation published in Ft. Wayne, on the 2d, 9th, and 16th days of September, 1892, which is in these words: 'Notice.

'To owners of property abutting

'Upon Superior street from Barr street to Calhoun street.

'Upon the following streets and alleys, commencing at the brick sewer in the alley between Glasgow avenue and Wabash avenue, thence south along said alley to Randall street, then west on -and all street to Grant avenue, thence south on Grant avenue to Alliger street, thence south on Alliger street to Eliza street, thence west on Eliza street to Walton avenue, thence south on Walton avenue to Hayden street, thence west on Hayden street to Winter street, thence south on Winter street to the south line of the right of way of the Wabash Railroad.

'Upon Winter street from the south line of the right of way of the Wabash Railroad to Pontiac street.

'Upon Pontiac street from Winter street to Lafayette street:

'You and each of you are hereby notified that the common council has be resolution declared a necessity to exist for the said improvements in the manner and form hereinafter stated.

'And for the purpose of giving you and each of you and all others interested therein an opportunity to be heard and make any and all objections you may desire as to the necessity for the making and construction of said improvement, the common council has ordered a meeting of the special committee thereof to be held in the city civil engineer's office in the city of Ft. Wayne on September 26, 1892, at 7:30 o'clock p.m., to hear your said objections and report the same to the common council, of which you will all take due notice.

'The nature and character of each particular improvement is as follows:

'The gutters on both sides of Superior street from the west line of Barr street to the east line of Calhoun street to be graded and paved with vitrified brick to a width of 4 feet.

'A 6-foot double-ring brick sewer, with the necessary manholes, catch basins, and connections, be constructed on the following streets and alley: Commencing at the brick sewer in the alley between Glasgow avenue and Wabash avenue, thence south along said alley to Randall street, thence west on Randall street to Grant avenue, thence south on Grant avenue to Alliger street, thence south on Alliger street to Eliza street, thence west on Eliza street to Walton avenue, thence south on Walton avenue to Hayden street, thence west on Hayden street to Winter street, thence south on Winter street to the south line of the right of way of the Wabash Railroad.

'A 5-foot double-ring brick sewer, with the necessary manholes, catch basins, and connections, be constructed on Winter street from the south line of the right of way of the Wabash Railroad to Pontiac street.

'A 4-foot double-ring brick sewer, with the necessary manholes, catch basins, and connections, be constructed on Pontiac street from Winter street to Lafayette street.

'By order of the common council. Rudy C. Reinewald, City Clerk.'

The business of the regular meeting of the council on August 23, 1892, being voluminous, by unanimous action of the members of said body the unfinished business was postponed until August 30, 1892, and a recess taken until the evening of August 30, 1892, when the resolution for the construction of the six-foot sewer, introduced July 12th, was, with others, passed by the council.

It is contended by complainant in its amended bill that, the resolution ordering the clerk to give the above notice having been passed on August 23d, before the passage on August 30th of the resolution for the construction of the sewer, both the resolution of August 23d and the notice given pursuant thereto are void as to complainant, and that no notice of any sort was therefore given to complainant, nor to said Pittsburg, Ft. Wayne & Chicago Railway Company, in any manner or form, at any time, or by any one with authority to give such notice.

On the 26th day of September, 1892, the Pittsburgh, Ft. Wayne & Chicago Railway Company appeared before the committee named in said notice by its counsel, and objected to the construction of the sewer upon the line proposed; but the Pennsylvania Company did not appear before said committee. Said special committee presented its report at the regular session of the council held September 27, 1892, reciting that a remonstrance signed by 39 property owners objected to the route of said sewer, and that the Pittsburg, Ft. Wayne & Chicago Railroad objected to the said route also, and the report concludes as follows:

'We believe the route set forth in the resolutions passed by the common council to be the most practical and the most advantageous to all concerned, and here recommend that

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