Schipper v. City of Aurora
| Decision Date | 22 November 1889 |
| Docket Number | 13,781 |
| Citation | 22 N.E. 878,121 Ind. 154 |
| Parties | Schipper v. The City of Aurora |
| Court | Indiana Supreme Court |
From the Dearborn Circuit Court.
The judgment is reversed, with costs.
G. M Roberts and C. W. Stapp, for appellant.
W. S Holman and W. S. Holman, Jr., for appellee.
Bernard Schipper brought this suit to recover damages for the breach of a contract made by him with the city of Aurora, and to recover for work done under the contract. The court sustained a demurrer to the complaint, and the propriety of this ruling is the only question presented on this appeal.
It appears that Literary street, in the city of Aurora terminates at the north bank of the Ohio river, and that in order to carry the surface water, which collected on that and other streets, from the top of the bank at the south end of the street, down to the surface of the water in the river, at low-water mark, so as to prevent the washing out of the bank the city authorities, in the year 1873, determined to construct a stone gutter, of suitable width, on a line with the extension of the center of the street down the slope of the bank, a distance of two hundred and fifty feet. In order to carry its plans into execution, the city obtained a grant from James W. Gaff, who owned the land constituting the bank of the river, by which it became authorized to contract and maintain the proposed gutter, and also to build and maintain abutments and stone walls necessary to protect the street on the land owned by Gaff. Afterwards, in the year 1875, having constructed the gutter as proposed, for a distance of one hundred feet, upward from low-water mark, the city leased the ground acquired from Gaff to the plaintiff for a period of ten years, to be used for a private landing. The latter agreed, as a consideration for the lease, to fill in with earth on each side of the gutter then constructed, and thereafter to be completed, to the width of fifty-nine feet. It is averred that the plaintiff filled in over five thousand cubic yards of earth along the sides of that part of the gutter which had been completed; that the filling and paving so done by the plaintiff cost and was of the value of $ 1,000; that it benefited the city to an amount exceeding the cost of the work, by protecting and holding in place that part of the gutter which had been completed. The plaintiff charges that the city refused to complete the work according to the agreement and in conformity with the plans and specifications adopted; that instead of carrying the paved gutter up to the top of the bank it constructed wooden culverts or chutes through which the water was conducted from the top of the river bank down to the point where the gutter had been completed, at the time the lease was made. It is averred that if the gutter had been completed according to the plan proposed, and in the manner agreed upon, the ground leased when filled as contemplated would have constituted a desirable landing, or wharf, but that in the condition in which it was left it was of no value whatever, and that the expense incurred and labor performed by plaintiff had been wholly lost, to his damage, etc.
It is contended in support of the judgment below, that the city of Aurora exceeded its power in attempting to lease the tract of land over which it had acquired an easement to conduct the surface water from the streets of the city, by means of gutters, to the plaintiff for his exclusive use, as a private landing, and that since the contract was void as a lease, all the auxiliary covenants are discharged. It is conceded that if the appellant had paid money into the city treasury he would be entitled to recover it in the proper form of action, but it is said he has parted with nothing, the city has simply changed its plan, and remained inactive, hence there is no right of recovery in an action for damages for a breach of the contract. The facts, as we view them, make a case of a different complexion.
Cities have authority to construct sewers and drains for the protection and improvement of the streets, and as incident to that power they had the right to acquire land by the ordinary methods in order to carry out the...
To continue reading
Request your trial