Strosser v. City of Fort Wayne

• Decision Date: 25 February 1885
• Docket Number: 11,565
• Citation: 100 Ind. 443
• Parties: Strosser v. The City of Fort Wayne
• Court: Indiana Supreme Court

100 Ind. 443

Strosser v. The City of Fort Wayne

No. 11,565

Supreme Court of Indiana

February 25, 1885

From the Allen Superior Court.

Judgment reversed.

N Wyeth, for appellant.

H Colerick, for appellee.

Elliott J. Zollars, C. J., did not participate in the decision of this case.

OPINION

Elliott, J.

It is not necessary to set forth with much particularity the allegations of the complaint of the appellant, for no attack is made upon it in any form. The several paragraphs of the pleading are, in all essential particulars, substantially alike, and count upon the same cause of action, which, shortly stated, is this: The appellee attempted to annex the appellant's land and that of other persons; the proceedings were absolutely void, but, notwithstanding the fact that such proceedings were void, the municipal officers did levy and collect taxes from the appellee and now retains the money so collected, although the land was not subject to taxation.

The action is by a property owner who has paid the taxes which he seeks to recover, and is not an action by a purchaser at a tax sale, so that the case is fully within the rule laid down in City of Indianapolis v. McAvoy, 86 Ind. 587; Durham v. Board, etc., 95 Ind. 182; Board, etc., v. Armstrong, 91 Ind. 528.

The second paragraph of the appellee's answer expressly admits that the land of the appellant was annexed in the manner described in the complaint; that taxes were assessed and paid as charged, and then seeks to avoid the effect of these admissions by these averments: "That during said time and after the annexation proceedings and while plaintiff resided on said premises, he voted at every city election and soli cited the votes from his neighbors and friends for himself as a candidate for common councilman, and petitioned the common council for improvements for the seventh ward of the city of Fort Wayne." We are unable to find any principle upon which this answer can be sustained.

If, as the answer admits, the proceedings for the annexation were unauthorized, the city had no right to levy or collect taxes, and unless the appellant has done something which precludes him from asserting the invalidity of the proceedings, his property rights are not affected by them. The fact that he voted at a municipal election can not have the effect to preclude him from asserting that the annexation proceedings were invalid, for that fact did not deprive the city of any substantial right nor confer upon the appellant a privilege or franchise of such legal value as to preclude him from asserting the truth respecting the annexation proceedings. Nor was the privilege of standing as a candidate for a municipal office of such value to him as to compel him to silence regarding the illegality of the attempt to annex contiguous territory, and surely his candidacy can not be treated as a thing of value to the municipality. The fact that he united in a petition for an improvement does not coerce him into silence, for the bare fact that he signed a petition neither brought him a thing of legal value, nor took from the city a thing of appreciable worth. These facts may be some evidence of acquiescence, but they are much too slight to build a defence of estoppel upon, or to sustain any defence of a kindred nature. This conclusion is so plainly correct upon general principles that it is hardly necessary to cite authorities, but there are cases fully in point against the sufficiency of the answer. Langworthy v. City of Dubuque, 13 Iowa 86; Buell v. Ball, 20 Iowa 282. Much stronger than the case made by the answer is that of Greencastle Tp., etc., v. Black, 5 Ind. 557, where the plaintiff was held not concluded although he voted for the tax he sought to have declared illegal.

The evidence shows that the common council of the city passed a resolution for the annexation of contiguous territory, but it also appears that the lots which the city attempted to annex were not platted, and that the appellant did not consent to the annexation. Under our statute, as has been repeatedly decided, the common council can not annex contiguous territory unless it is laid off into lots and platted. Such, indeed, is the express provision of the statute. R. S. 1881, sections 3195, 3196, 3197. When the land is not laid off into lots, the city must secure an order of the board of commissioners for the annexation. The common council have no jurisdiction in such cases, and an order of a court, even of the highest rank, in a case where it has no jurisdiction, is ineffective for any purpose. Taylor v. City of Fort Wayne, 47 Ind. 274; City of Peru v. Bearss, 55 Ind. 576; Town of Cicero v. Williamson, 91 Ind. 541; Windsor v. McVeigh, 93 U.S. 274. It is so plain that the common council can not exercise jurisdiction in cases where it is expressly conferred upon the board of commissioners of the county that neither argument nor authority is needed. City of Logansport v. LaRose, 99 Ind. 117.

The evidence does not show that the appellant ever received any substantial benefit from the annexation, nor does it show that the city incurred any expense, or was induced to change its position to its injury, on account of the attempted annexation. If it had been shown that the appellant had received any benefit from the attempted annexation, or if it had been made to appear that the city had incurred expense, or laid out money, on the faith that the annexation was valid, we should have had a very different case. But we have here a case where the city did not change its position to its injury, nor the citizen receive any substantial consideration. The case falls within the general rule thus stated by one of the text-writers: "It will be found upon an examination of the above and other cases that, wherever the rights of other parties have intervened by reason of a man's conduct or acquiescence in a state of things about which he had an election, and his conduct or acquiescence, or even laches, was based on a knowledge of the facts, he will be deemed to have made an effectual election; and he will not be permitted to disturb the state of things, whatever may have been his rights at first. But mere acquiescence or waiver, made without consideration, will not be binding, if a change of purpose do not affect the rights of others." Bigelow Est. (2d ed.) 508.

There may be a consideration sufficient to bind the person under a duty to act although he receives no direct benefit. A consideration may exist although the party against whom a right is urged may have received nothing of value from the other party. It is sufficient if there be loss or injury to the party acting. Shade v. Creviston, 93 Ind. 591, see p. 595. This principle is illustrated by the cases which hold that where a land-owner licenses another to do an act, and the licensee, upon the faith of the privilege granted, expends large sums of money, the licensor can not revoke the license. Rogers v. Cox, 96 Ind 157, vide authorities p. 158; Buchanan v. Logansport, etc., R. W. Co., 71 Ind. 265; Miller v. State, 39 Ind. 267; Snowden v. Wilas, 19 Ind. 10. It is further illustrated in cases of boundaries, for, in such cases, long acquiescence in a line accepted as the boundary will preclude the real owner of the soil from reclaiming it and changing the boundary, if the other party has made valuable improvements on the faith that the boundary was the true one. McCormick v. Barnum, 10 Wend. 104; Chicago, etc., R. W. Co. v. People, 91 Ill. 251; Diehl v. Zanger, 39 Mich. 601; Hagey v. Detweiler, 35 Pa. 409; Columbet v. Pacheco, 48 Cal. 395; Meyers v. Johnson, 15 Ind. 261; Wingler v. Simpson, 93 Ind. 201; Pitcher v. Dove, 99 Ind. 175. It is true that the mistake which caused the invalidity of the annexation proceedings was one of fact. Grusenmeyer v. City of Logansport, 76 Ind. 549; City of Indianapolis v. McAvoy, supra; Town of Cicero v. Williamson, supra. But an acquiescence in a mistake, and knowledge that large expenditures have been made in ignorance of the mistake, may preclude a party from relief against it. The general rule undeniably is that a party is not estopped unless he has knowledge of all the material facts, but there are many exceptions to this general rule. Pomeroy says: "The rule has sometimes been stated, as though it were universal, that an actual knowledge of the truth is always indispensable. It is, however, subject to so many restrictions and limitations, as to lose its character of universality. It applies in its full force only in cases where the conduct creating the estoppel consists of silence or acquiescence. It does not apply where the party, although ignorant or mistaken as to the real facts, was in such a position that he ought to have known them, so that knowledge will be imputed to him. In such case, ignorance, or mistake will not prevent an estoppel. Nor does the rule apply to a party who has not simply acquiesced, but who has actively interfered by acts or words, and whose affirmative conduct has thus misled another. Finally, the rule does not apply, even in cases of mere acquiescence, when the ignorance of the real facts was occasioned by culpable negligence." 2 Pomeroy Eq. Juris., sec. 809. We think that where the question is as to the corporate boundary, and where the authorities who attempt to extend the boundaries act in a public capacity, and in good faith assume to make the change in the corporate boundaries in accordance with the provisions of the law upon the subject, and fail in doing this by mistaking a fact, the corporation may successfully assert the efficacy of the change against a taxpayer who has lived in the territory sought to be annexed, who has for a considerable length of time acquiesced in the validity of such proceedings, and who...