Pulos v. James
| Decision Date | 30 October 1973 |
| Docket Number | Nos. 771S216,771S211,s. 771S216 |
| Citation | 302 N.E.2d 768,261 Ind. 279 |
| Parties | George PULOS and Rose Marie Pulos, Appellants, v. James A. JAMES, aka Jim A. James, and Barbara E. James, Appellees. James A. JAMES, aka Jim A. James, and Barbara James, Appellants, v. Byron E. BAILEY and Rose Marie Bailey, Appellees. |
| Court | Indiana Supreme Court |
Louis F. Cohen, Virginia Dill McCarty, James R. Nickels, Indianapolis, for appellants.
Bulen & Castor, James R. Nickels, Dale B. McLaughlin, Indianapolis, for appellees.
These cases are concerned with the same subject matter and determined by the same constitutional proscription. Accordingly, they are here consolidated. Although other issues have been raised, both cases must be governed by a determination of the constitutionality of the 1965 amendment to the 1907 general act covering disannexation and a vacation of streets, highways and plats. The statute with which we are here concerned is § 1, ch. 277 of the Acts of 1965, which was re-enacted with but slight changes by § 609, ch. 239 of the Acts of 1969, 1972 Supp., 1963 Repl. Burns Ind.Stat.Ann. § 48--916, IC 18--5--10--41. The 1965 statute was as follows:
'Section 1. Acts of 1907, c. 279, s. 12, Acts 1923, c. 140, s. 1, is further amended to read as follows: Sec. 12. In cities which have a board of public works, all proceedings authorized in this act to be begun before such board or the common council of such city shall be begun before such board of public works. If any city have no board of public works, then such proceedings shall be begun before the common council thereof.
In counties in which there exists a city of first class, the metropolitan plan commission of such county or the planning committee thereof if so designated by the commission, shall have the power and authority to vacate any plat or part thereof or approve replatting where such vacation or replatting does not affect any street, highway, alley or public easement, or where such public easement has been waived or released prior to the approval of the plan commission or the plat committee thereof. The vacation of a plat or any part thereof may include the vacation, change or amendment or any recorded covenant or restriction applying thereto which was contained in the original plat. Where such vacation or replatting includes the vacation or relocation of any street, highway, alley, public ground or way or part thereof, or any easement not released or waived by a public utility prior to the hearing, then the approval of the metropolitan plan commission of such county or the plat committee thereof if so designated, shall be obtained as a condition of validity prior to final approval by the board of public works of such county.
Sec. 2. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in full force and effect from and after its passage.'
The 1965 amendment was in effect at the time of the action of the Planning Committee of the Metropolitan Plan Commission, which has been questioned by these proceedings. The amendment rendered the act applicable to cities of the first class and provided that in counties wherein such a city exists, the power and authority to vacate plats or parts thereof should vest in the Metropolitan Plan Commission of such county or the plat (planning) committee thereof if so designated by the commission. It further provided, as does the 1969 Act, for the vacation of covenants or restrictions applying to subdivided real estate where such restrictions are contained in the recorded plat, and this is the portion of the act with which we are concerned in these cases.
In Pulos v. James, Pulos', the plaintiffs (appellants) instituted the action by way of a complaint for declaratory judgment. They were the owners of real estate within the recorded plat of 'Meadowview Addition' in Marion County, which county contains the City of Indianapolis, a city of the first class. James', the defendants (appellees) subsequently became the owners of two lots within the same plat. The recorded plat contained restrictive covenants providing among other things, the following:
'3. All parcels in the tract shall be known and described as residential parcels. No structure shall be erected, altered, placed or permitted to remain on any parcels other than one detached single family dwelling not exceeding two stories in height and a private garage for not more than two cars.
12. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 1970, at which time said covenants shall be automatically extended for a period of ten years, and for successive periods each ten years thereafter, unless by a vote of the majority of the owners of parcels it is agreed to change the said covenants in whole or in part, or to terminate them.
13. If the parties hereto, or any of them or their heirs or assigns, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or persons owning any real property situated in said Meadowview Addition to prosecute any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenant, or to recover damages for such violation.
14. Invalidation of any one of these covenants by judgment or court order shall in no wise affect any of the other provisions, which shall remain in full force and effect.'
The defendants' lots adjoined each other and were economically adaptable to and more valuable for commercial use. They petitioned the Plat Committee of the Metropolitan Plan Commission of Marion County, and in response thereto, the committee vacated the restrictive covenants. It is not apparent from the record before us whether the restrictions were vacated as to the entire subdivision or merely as to the defendants' lots, but such is immaterial to our determination. The executive director of the Metropolitan Plan Commission appealed the decision to the commission, and the commission denied the appeal.
It should be noted at the outset that we are here concerned only with the constitutionality of that portion of the aforementioned act which purports to vest the authority to vacate subdivision restrictions in the plan commission or its committee. We are not concerned with considerations that, under some circumstances warrant a court of equity in refusing to enforce such covenants. If the provision is constitutional, the acts of the commission and its committee are valid and relieve the defendants' lots from the burden of the restrictive covenants. If it is unconstitutional, the acts of the commission and committee are void, and the covenants remain in full force and effect.
The trial court granted the defendants' motion to dismiss the complaint for failure to state a claim. Plaintiffs refused to plead over and judgment for the defendants was entered. The plaintiffs' motion to correct errors was overruled, and this appeal followed.
A restrictive covenant in a plat is a covenant running with the land. Sorrentino v. Cunningham (1942), 111 Ind.App. 212, 39 N.E.2d 473, 478. It creates a property right in each grantee and subsequent grantee of a lot in the plat subject to the restriction, Wischmeyer v. Finch (1952), 231 Ind. 282, 107 N.E.2d 661. That property right cannot be taken for a private use, as has been purportedly accomplished here by the defendants pursuant to the statute in question.
Article I, Sections 21 and 23 of the Indiana Constitution read as follows:
The due process clause of the Fourteenth Amendment to the United States Constitution reads as follows: 'Nor shall any state deprive any person . . . of property, without due process of law.' These sections of our Indiana Constitution and the United States Constitution prohibit the taking of private property for a private use. Fountain Park Co. v. Hensler (1927), 199 Ind. 95, 155 N.E. 465; Logan v. Stogsdale (1890), 123 Ind. 372, 24 N.E. 135; Stewart v. Hartman (1874), 46 Ind. 331; Wild v. Deig (1873), 43 Ind. 455.
In the Fountain Park case, the General Assembly had purported to give the power of eminent domain to a Chautauqua Association, the purpose of which the court found not to be substantially related to a public use. The act was held a violation of both the Indiana and Federal Coinstitutions:
'The constitutional inhibition against taking private property for public use without compensation (Indiana provision) by necessary implication prohibits taking private property for private use, . . . and a taking for private use . . . is also a deprivation of property without due process of law (Federal provision) . . .' (199 Ind. 108, 155 N.E. at 469).
The Logan, Stewart and Wild cases all invalidated statutes authorizing private persons to take property by eminent domain for a private way.
No Indiana case has been found in which the exact question raised herein has been decided. However, it was held in Capp v. Lindenberg, etc., et al. (1961), 242 Ind. 423, 178 N.E.2d 736 that a board of zoning appeals had no authority under the ordinance creating it to grant the variance sought. In that case, we further quoted with approval from 58 Am.Jur., Zoning § 4, p. 942, '* * * a zoning law cannot constitutionally relieve land within the district covered by it from lawful restrictions affecting its use, imposed by covenants.' and from Bassett, Zoning (1940) p. 185, 'Zoning regulations and private restrictions do not affect each other.'
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