Smith v. Incorporated Town of Culver

• Citation: 249 Ind. 665,234 N.E.2d 494
• Decision Date: 04 March 1968
• Docket Number: No. 368S45,368S45
• Parties: A. Coke SMITH et al., Appellants, v. The INCORPORATED TOWN OF CULVER, Indiana et al., Appellees.
• Court: Supreme Court of Indiana

Page 494

234 N.E.2d 494

249 Ind. 665

A. Coke SMITH et al., Appellants, v. The INCORPORATED TOWN OF CULVER, Indiana et al., Appellees.

No. 368S45.

Supreme Court of Indiana.

March 4, 1968.

Chipman, Chipman & Rakestraw, Plymouth, for appellants.

Stevens, Wampler, Travis & Feagler, Plymouth, for appellees.

ARTERBURN, Judge.

This case comes to us on transfer from the Appellate Court of Indiana. (See opinion of Appellate Court as reported in 224 N.E.2d 59.)

We find that the petitioners have made out a case for transfer to this Court from the Appellate Court on the basis that it contravenes a ruling precedent of this Court in the City of Aurora v. Bryant et al. (1960), 240 Ind. 492, 503, 165 N.E.2d 141, 147, wherein it is stated:

'The rule that this court (an appellate court) will not weigh evidence applies to a hearing by the trial court on a remonstrance in an annexation proceeding.'

This action arose in the court below as a result of the adoption of an ordinance by The Incorporated Town of Culver, Indiana, annexing certain territory adjacent to the town. There was a judicial review from this action to the Marshall Circuit Court; the court upheld the ordinance and directed the annexation. From this judgment the appeal was taken. The trial court made special findings of fact. The controversy on this appeal is narrowed to whether or not there was any evidence to support the finding of the trial court as to the existence of primary determinants (a) and (e) as set forth in the statute, (Burns' Ind.Stat.Anno. § 48--702) which are referred to in the briefs and the argument as 1 and 5, and read as follows:

'(a) The annexation is in the best interests of the city and of the territory sought to be annexed.

'(e) The area sought to be annexed, if undeveloped, is needed for development of the city in the reasonably near future.'

This statute further provides:

'If the judge of the court shall find that the primary determinants enumerated above apply to the annexation, it shall take place notwithstanding the remonstrance and notwithstanding, further, the provisions of any other statute of this state. If, however, the presence of these primary determinants cannot be demonstrated in the evidence, the annexation shall not take place. * * *'

The trial court made the following special finding as to these two determinants:

'1. The annexation by the Incorporated Town of Culver, Indiana, of the territory described in Ordinance No. 175 of the said Incorporated Town of Culver, Indiana, is in the best interests of said Town and of the said territory described in said Ordinance No. 175.

'5. The major portion of the area described in Ordinance No. 175 of the Incorporated Town of Culver, Indiana, is developed, and the remainder of said area is undeveloped; that that portion of said area which is undeveloped is needed for the development of the Incorporated Town of Culver, Indiana, in the reasonably near future.'

We do not on appeal weigh and consider the evidence to determine whether or not the appellee-town has 'established' all the primary determinants in a case of annexation. We may only consider the evidence most favorable to the finding of the town board, with all reasonable inferences to be drawn therefrom. If there is a conflict in the evidence before the trial court, the decision of the town board must stand as to the facts. In Arnholt et al. v. City of Columbus (1957), 128 Ind.App. 253, 145 N.E.2d 660, the trial court granted the prayer for annexation and the Appellate Court, upon a consideration of conflicting evidence, affirmed the decision of the lower court.

The leading case, however, is City of Aurora v. Bryant et al. (1960), 240 Ind. 492, 165 N.E.2d 141. There the trial court denied annexation, and this Court, after considering conflicting evidence, affirmed the decision of the trial court, stating plainly that the court, on appeal, will not weigh the evidence heard on a remonstrance in an annexation proceeding. We must follow this precedent in the determination of this case.

The evidence here shows that the Culver Military Academy operated and owned the Culver Educational Foundation, a not for profit corporation, which owns grounds adjacent to the Incorporated Town of Culver; that part of this is a section known as West Terrace Subdivision, which is the subject of this annexation proceeding. The Culver Educational Foundation has developed this subdivision. It has two principal blacktop streets with curbs and gutters; water mains and sewer lines were installed at the expense of Culver Educational Foundation. However, such facilities are connected with the Incorporated Town of Culver. It appears that the Academy provides maintenance service for the sewer, water systems, and streets in said subdivision.

The Incorporated Town of Culver is a community of 1948 residents at the time of the last census; it has a normal business section, a consolidated school system through high school grades, a public library, a public beach, a sewer system with a sewage disposal plant, a volunteer fire department, and law enforcement officers. It also has a street department, with equipment for the care and...