Swaim v. City of Indianapolis
| Decision Date | 13 June 1930 |
| Docket Number | No. 25848.,25848. |
| Citation | 171 N.E. 871,202 Ind. 233 |
| Parties | SWAIM et al. v. CITY OF INDIANAPOLIS. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Hamilton Circuit Court; Fred E. Hines, Judge.
Action by Fred E. Swaim and others against the City of Indianapolis. From the judgment rendered, plaintiffs appeal.
Affirmed.Christian & Waltz, of Noblesville, and Sol. H. Esarey, of Indianapolis, for appellants.
Edward H. Knight and James E. Deery, both of Indianapolis, Gentry Cloe & Campbell, of Noblesville, and Merle N. A. Walker, of Indianapolis, for appellee.
The appellants, who own the Indiana Pythian building and the lots on which it is located at the intersection of Massachusetts avenue and Pennsylvania street in the city of Indianapolis, brought this action to restrain the city from carrying out certain orders of its board of public works for widening the roadway (from 50 feet to 66 feet, i.e., 8 feet on each side) and narrowing the sidewalk (from 18 1/2 feet to 10 1/2 feet) in Massachusetts avenue in front of their building (no change being made in the total width of the street). The complaint alleged that narrowing the sidewalk would hinder and obstruct the substantial use of the avenue for pedestrians, and would injure and destroy the usefulness and value of appellants' building for office purposes. It alleged that the city plans to fill up and destroy a portion of the basement or vault of the building which extends under the sidewalk and street, and which contains boilers, dynamos, engines, and wells, placed there with the permission of the city, when the building was erected twenty-five years ago. It was also alleged that the city had served a notice on the plaintiffs demanding that they remove such fixtures and machinery from the vault underneath the sidewalk and street, and vacate said space, or (to retain such space under the sidewalk and street and) to submit to the city plans and specifications for the construction of adequate supports (steel construction) for that portion of the roadway which is to be widened, and for the sidewalk (the grade of which is to be changed), and that, in case appellants fail to comply therewith, the city threatens to take possession and fill up said basement or vault space.
After hearing the evidence, the court found for the defendant city and denied the temporary injunction, from which action this appeal was taken.
[1][2][3][4][5] The complaint prayed for a “temporary restraining order,” and, upon final hearing, for a “permanent injunction.” The order of the court appealed from states that it was for the appellee and against the appellants on their application “for a temporary injunction.” The terms “temporary restraining order” and “temporary injunction,” while sometimes used synonymously, are properly distinguished. A temporary restraining order (is usually issued without notice and) is effective only until an application for injunction can be heard, while a temporary injunction (is usually issued upon notice and hearing, and) is effective until the trial of the action in which it is issued. 14 R. C. L. 306. No appeal can be taken from an order granting, or refusing to grant, a temporary restraining order, Mason v. Milligan (1916) 185 Ind. 319, 114 N. E. 3 (). The hearing conducted by the trial court was upon notice to appellee, both parties were in court, introduced voluminous evidence, and argued the case. We conclude that the order made by the court was an order refusing to grant a temporary injunction, and that jurisdiction of the appeal is properly in this court.
Supporting appellants' allegation that narrowing the sidewalk would hinder and obstruct the substantial use of Massachusetts avenue for pedestrians, and would injure and destroy the value of their building for office purposes, the custodian of the building testified in substance as follows: Ten stories of the building, 258 rooms, are occupied by 120 tenants, lessees of offices; the basement contains a restaurant and a barber shop; an auditorium with a seating capacity of 1,000 is on the eleventh floor, and conventions of different orders and public meetings are held there. The four elevators of the building are located near the Massachusetts avenue entrance, which is the entrance most frequently used, and there is a large amount of pedestrian (as well as vehicular) traffic on Massachusetts avenue. He further testified that the sidewalks are crowded with people at the time of conventions, and that in his opinion a sidewalk 10 1/2 feet in width is not wide enough.
The engineer of the city plan commission testified on behalf of the appellee that Massachusetts avenue carries more traffic, at the peak or rush hours, than any other street in Indianapolis ( how the observations and comparisons were made); that but one line of vehicular traffic, in addition to the street cars, can now pass the safety zone therein, and that it is desired to widen the street so that two such lines of traffic can pass, thus greatly increasing the vehicular capacity of the street. He also testified that more pedestrians pass on the street than persons in vehicles, that it does not require over 2 feet of space for a man walking along a sidewalk, and that all the sidewalks in the downtown district are about 15 feet wide. From plats introduced in evidence it appears that 16 feet in the center of the street is used for street car space, that the distance from the street car space to the sidewalk is 16 feet (a space narrower in width than the present sidewalk), and that the distance from the safety zone to the sidewalk is only 11 1/2 feet. The accompanying photograph taken from the record shows the situation clearly.
[6][7] The number of travelers on both streets and sidewalks in the downtown business districts of our cities has constantly increased during the past years, and transportation facilities, methods, and practices rapidly change. The multitude of private automobiles now operating and parking upon the streets requires more roadway space than if the same number of travelers were carried in street cars and busses. Present conditions seem to require that more of the street surface be devoted to the roadway, while under conditions arising in the future wider sidewalks and narrower roadways may be desirable or necessary. In the future, even subways and elevated ways may be necessary. Thus it is apparent that the problem of determining what use it shall be necessary to make of land dedicated for a street, including the problem of determining what proportion of the surface of the street shall be devoted to a roadway and what proportion to sidewalks, is necessarily one of fact, which must be determined from time to time by the proper authorities of the city. The courts have uniformly recognized that, under the city's power to control the public streets, it may, in the discretion of its officers, determine questions such as this, and that such discretion, unless there is the clearest abuse thereof, is not subject to control by the courts. 13 R. C. L. 82; 1 Elliott, Roads & Streets (4th Ed.) § 588, 581, 551; Macy et al. v. City of Indianapolis (1861) 17 Ind. 267;Yeakel v. City of Lafayette (1874) 48 Ind. 116;Town of Marion v. Skillman (1891) 127 Ind. 130, 26 N. E. 676, 11 L. R. A. 55.
[8] The board of works of the city of Indianapolis in the instant case determined that it was desirable and necessary to widen the roadway and narrow the sidewalks in question. The appellants undertook to prove that the narrowing of the sidewalk in front of their building would hinder and obstruct the use of the street, and would injure and destroy the value of the building for office purposes. The lower court, by its order, held that such proof had not been made out. Upon reviewing (but not weighing) the evidence above set out, we cannot say that the lower court was in error or abused its discretion.
[9] The appellants make and argue the propositions that the right of ingress and egress to their property is an incorporeal constitutional right, and can be taken from them only under condemnation proceedings, under the power of eminent domain, upon a hearing under the due process clauses of the federal and state Constitutions. An abutting owner, regardless of whether he is the owner of the fee of the street or highway, has a special easement of access therein for purposes of ingress and egress, which easement is subordinate to the public convenience, of which the public authorities having control of the public streets are the judges. 13 R. C. L. 142, 143; 2 Elliott, Roads & Streets (4th Ed.) 1155, 1156. We do not believe that any question concerning the easement of access is involved here, since the facts proven do not show that the change in the width of the sidewalk will materially affect ingress and egress to and from appellants' property.
There is no material conflict in the evidence adduced under the remaining allegations of the complaint, but a question of law, which is contested by the parties, arises from those facts. It appears that appellants' building is an eleven story, triangular or “flatiron” shaped building, of steel structure, with exterior of Bedford stone, occupying the point bounded by Pennsylvania street on the west and Massachusetts avenue on the southeast side, extending along the latter street approximately 178 feet. At the time it was built, about twenty-five years ago, the city engineer laid out the foundation and approved the plans, and the city building inspector inspected and approved the work as it was done. The plans included a basement or vault extending about 20 feet beyond the property line underneath the dedicated street. The excavation of the basement and all construction work on the retaining walls, basement, and...
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