Powers v. Town of New Haven

• Decision Date: 20 June 1889
• Citation: 120 Ind. 185,21 N.E. 1083
• Parties: Powers et al. v. Town of New Haven.
• Court: Indiana Supreme Court

120 Ind. 185

21 N.E. 1083

Powers et al.

v.Town of New Haven.¹

Supreme Court of Indiana.

June 20, 1889.

Appeal from circuit court, Allen county; Ed. O'Rourke, Judge.

Action by the town of New Haven against Jesse C. Powers and Volney Powers, to recover the cost of constructing a sidewalk in front of defendants' property. Judgment for plaintiff. Defendants appeal.

H. C. Hartman and Taylor & Morris, for appellants. Allen Zollars, for appellee.

Coffey, J.

The complaint in this cause alleges that the town of New Haven is a municipal corporation duly organized under the laws of this state; that on the 4th day of August, 1875, the board of trustees of said town, being of the opinion that public convenience required that the sidewalks on the north side of Main street, in said town, should be graded and planked, or otherwise paved from John Fisher's butcher shop east to Broad way street in said town, passed an ordinance to grade and plank said sidewalk between said points, a copy of which ordinance is filed with and made a part of the complaint; that, after the passage of said ordinance, notice was duly given to each of said defendants by the duly-authorized agents of said town to grade and plank or gravel said sidewalk in front of their said lots in accordance with the provisions of said ordinance, said sidewalk being in front of and adjoining said lots; that defendants neglected and refused to either gravel or plank said walks in front of said lots; that after such refusal, to-wit, on the 13th day of October, 1875, said board of trustees ordered the marshal of said town to make and post up notices for bids for the grading and planking of said sidewalks between said first-mentioned points, and adopted specifications according to which said work should be bid for, and according to which said grading and planking should be done, a copy of which said specifications is filed with the complaint; that said marshal, on or about the 14th day of October, 1875, did post up said notices, in which was also a copy of said specifications, and said notices were so posted up for more than 10 days at the most public places in said town; that, after said notices had been so posted for more than 10 days, the said marshal of said town received bids for the doing of said work, and, Anthony Bingnot being the lowest and best bidder, the said marshal let to him the doing of said work for the sum and price of $140; that said Bingnot at once commenced said work, and completed it before the 6th day of November, 1875, in accordance with the specifications aforesaid; that on the 6th day of December, 1875, the said board of trustees being in session at a regular meeting, said marshal reported to them the cost of said work, being $140, which was duly audited by said board of trustees, and the amount, $140, paid to said Anthony Bingnot out of the treasury of said town; that the said defendants during the time said ordinance was being passed, and at the time said work of grading and planking said sidewalk was commenced and was being done, were well aware of the fact; and, although they stood by and allowed said work to be done without objection, yet they have ever since refused and still refuse to pay the cost of the same, or any part thereof. In the copy of the ordinance filed with the complaint the lots in question are described as lots No. 21, 22, 23, and 24 on the old plat of the town of New Haven. Subsequent to filing this complaint the plaintiff filed a supplemental complaint which, after reciting the allegations in the original complaint, alleges that on the ------ day of ------, 1876, the defendant Volney Powers died intestate, and that his interest in said lots descended to and became the property of Jessie Powers and Maggie Powers, who are made parties defendant.

A demurrer to this complaint, for want of sufficient facts to constitute a cause of action, was overruled by the court, and the appellants excepted. The appellants filed an answer to this complaint, consisting of 13 paragraphs. The first is a general denial. The second avers that the appellants protested against the work referred to in the complaint, on the ground that it was being done without their consent, and without authority. The third avers that the improvement specified in the ordinance filed with the complaint is for less than one square, viz., for four-tenths of one square or block. The fourth avers that the ordinance filed with the complaint is void because said board of trustees declared therein that, in their opinion, the public convenience required that the sidewalk on the north side of Main street should be graded and planked or covered with gravel; that said ordinance does not compel the owners of lots adjoining said street to grade and pave or plank the same; that, instead thereof, it orders that the owners of lots No. 21, 22, 23, and 24, adjoining such street, shall grade, plank, or gravel the same along the north side of Main street from John Fisher's butcher shop to Broadway street; that there are other lots than those named in said ordinance adjoining such street on the north side, the owners of which are not compelled by said ordinance to grade or pave the same in front of their lots. The fifth avers that the ordinance filed with the complaint is void because the defendants are ordered to grade, plank, or cover with gravel the sidewalks on the north side of Main street from John Fisher's butcher shop east to Broadway street; that said butcher shop is situated 10...