Seymour Water Co. v. City of Seymour
Decision Date | 30 March 1904 |
Docket Number | 20,087 |
Citation | 70 N.E. 514,163 Ind. 120 |
Parties | Seymour Water Company et al. v. City of Seymour |
Court | Indiana Supreme Court |
Rehearing Denied June 8, 1904.
From Jennings Circuit Court; A. G. Smith, Special Judge.
Action by the city of Seymour against the Seymour Water Company and others, for the rescission of a contract. From a decree for plaintiff, defendants appeal.
Reversed.
Merrill Moores and O. H. Montgomery, for appellants.
J. H Shea, C. E. Wood, B. K. Elliott, W. F. Elliott, Frank Littleton, Lincoln Dixon and Burt New, for appellee.
This suit was instituted by appellee against appellants. The complaint was in two paragraphs, each of which was challenged by demurrer by each of appellants. The demurrer was overruled, and by proper assignments of error the question as to the sufficiency of said paragraphs is presented for our consideration.
The first paragraph is as follows:
The second paragraph omits the ultra vires charges, but alleges, in addition to the other averments of said first paragraph, the following:
In determining the sufficiency of the first paragraph of the complaint, as against the Seymour Water Company, it will be profitable to note some matters which said paragraph omits to allege. It does not charge (1) that a water-works system was ever built or maintained by said company or by anyone else in pursuance of said contract and franchise, or that anything has been done by virtue thereof; (2) that said water company is attempting or threatening to use or occupy the streets or other public places of said city under said grant; (3) that said water company is asserting any claim or title by virtue of said grant, either adverse to the city or otherwise; (4) that said grant is a cloud upon the city's title.
Counsel for appellee contend that said paragraph is sufficient to quiet title. Section 1082 Burns 1901 provides that "an action may be brought by any person, either in or out of possession, or by one having an interest in the remainder or reversion, against another who claims title to or interest in real property adverse to him, although the defendant may not be in possession thereof for the purpose of determining and quieting the question of title." The principles upon which the statutory action to quiet title are based are, in a large measure, of equitable origin; and while such principles have been influential in the construction of the statute, yet the fact remains that the proceeding as it now exists is essentially the creature of legislative enactment. Ragsdale v. Mitchell (1884), 97 Ind. 458; Trittipo v. Morgan (1884), 99 Ind. 269; Johnson v. Taylor (1885), 106 Ind. 89, 5 N.E. 732; Puterbaugh v. Puterbaugh (1891), 131 Ind. 288, 30 N.E. 519, 15 L.R.A. 341.
In Johnson v. Taylor, supra, it was said concerning such statutory action that "the plaintiff or cross-complainant must allege in his complaint or cross-complaint that he is the owner of certain real estate, or of a certain interest therein, describing the same; and that the claim of the defendant to his action or cross-action, in or to such real estate or interest therein, is adverse to the title asserted by the plaintiff, or is unfounded and a cloud upon plaintiff's title." It should be stated in this connection, however, that in view of the code, a complaint to quiet title is not to be condemned because of the lack of any merely formal statement as to the nature of the defendant's claim, or of its relation to or its effect upon the plaintiff's title, where the general facts alleged supply such formal allegation as a necessary inference. Caress v. Foster (1878), 62 Ind. 145; Kitts v. Willson (1885), 106 Ind. 147, 5 N.E. 400; Rausch v. Trustees, etc. (1886), 107 Ind. 1, 8 N.E. 25; Bisel v. Tucker (1889), 121 Ind. 249, 23 N.E. 81; Wilson v. Wilson (1890), 124 Ind. 472, 24 N.E. 974; Island Coal Co. v. Streitlemier (1894), 139 Ind. 83, 37 N.E. 340.
The above sufficiently indicates the standard by which a complaint to quiet title must be measured, and, judged by this standard, the paragraph of complaint in question falls far short of stating a cause of action, under the statute, against said company.
As to the other appellants, the question as to the sufficiency of said first paragraph, viewed as a complaint to quiet title is more doubtful, but we have concluded that it is not sufficient as to them. What the property is upon which said appellants have a deed of trust and mortgage is altogether in doubt. We infer that "said property" is tangible in its character, since it is alleged to be "in and about the city of Seymour," but we have looked in vain for any corresponding antecedent. So far as the assignment of hydrant rentals is concerned, it is to be considered that it is not alleged that a water plant has been constructed. In other words, it does not appear that there is any corporeal tenement out of which a rent could issue. We are not permitted to infer, in support of a barren allegation that there has been an assignment of hydrant rentals, that the assignment was of such a character as would, if valid, permit the assignees to proceed upon their own initiative to do any act to the prejudice of appellee's real estate. As we have seen, the statute provides that the action to quiet title is to be brought against one "who claims title to or...
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