The American Furniture Company v. The Town of Batesville
| Decision Date | 17 October 1894 |
| Docket Number | 16,475 |
| Citation | 38 N.E. 408,139 Ind. 77 |
| Parties | The American Furniture Company v. The Town of Batesville |
| Court | Indiana Supreme Court |
From the Ripley Circuit Court.
The judgment is reversed, with instructions to sustain the appellants' motion to modify the judgment.
C. K Bagot and A. Stockinger, for appellant.
J. H Connelley, M. R. Connelley and J. B. Rebuck, for appellee.
The action herein was by the appellee, as an incorporated town to declare an obstruction of one of her streets a nuisance, for the abatement of such obstruction, and for damages.
The appellant first complains of the action of the circuit court in overruling a demurrer to the first and second paragraphs of complaint. The point urged is that by section 3333, subdivision 4, R. S. 1881, towns possess the power "to declare what shall constitute a nuisance, and to prevent, abate and remove the same"; that such power permits a remedy excluding a resort to the courts for such purposes.
The argument is also made that, under the power conferred by the statute, the town could proceed to declare the obstruction a nuisance, and to abate it by the action of its trustees, notwithstanding a prior adverse adjudication by the courts, if resort to the courts may be had.
We can not concur in this contention. If there are concurring effectual remedies, the choice and uninterrupted prosecution of one excludes the other. Buscher v. Knapp, 107 Ind. 340, 8 N.E. 263; Traders Ins. Co. v. Carpenter, 85 Ind. 350; Klebar v. Town of Corydon, 80 Ind. 95; Searle v. Whipperman, 79 Ind. 424; Dunkle v. Elston, 71 Ind. 585; Ney v. Swinney, 36 Ind. 454.
The insistence is that the summary remedy possessed by the town is exclusive of the remedy adopted, and precludes a resort to the courts.
In support of this point, counsel cite Storms v. Stevens, 104 Ind. 46, 3 N.E. 401, where it is held that a statute creating a new right and prescribing the mode of its enforcement excludes all other remedies.
The summary abatement of a nuisance was a right which existed at common law in favor of the individual sustaining special injury from such nuisance, and the statute in question but confers that right upon the municipal corporation. It is not a new right. It should be remembered, also, that it is by proceeding in rem, and not in personam, for herein lies a distinction in the proceeding here in review. The power extended to towns does not permit proceedings in personam, and in the nature of civil actions which affect particular persons, but, like other corporate powers, must be exercised by and through ordinances, general in their character and affecting alike all the property or all the business of all of the citizens under like conditions, occupying like situations and conducted in like manner. City of Plymouth v. Schultheis, 135 Ind. 339, 35 N.E. 12.
Therefore, it would not be possible for the appellee to adopt the remedy here adopted, a remedy which is personal in its character, and one which invokes the equity jurisdiction of the court to restrain the person from the further maintenance of that which obstructs the way and affects the corporate rights.
It is true that the complaint asks to declare the obstruction a nuisance, and to abate it, but this remedy is sought by and through that jurisdiction which the court may exercise, in the first instance, over the alleged offender. Authors and the judges speak of the enjoining of nuisances in the same sense as of the abatement of nuisances, and, in a general way, there is no distinction. The abatement, in one instance, is accomplished through the restraining influence of the court over the defendant, and, in the other, it is by and through its officers under a decree against the defendant, where, as we have said, the proceeding is in personam. But, whatever distinctions may properly exist, it is certain that towns may not, in their corporate capacity, proceed by adversary methods, before their own trustees, to adjudge a particular property or structure a nuisance, and, by order against the owner, secure its abatement.
In the case of Cheek v. City of Aurora, 92 Ind. 107, the city had threatened to abate an obstruction of a street as a nuisance, and the owner of the obstruction instituted suit to enjoin the city from its threatened action. The city, by cross-complaint, sought to declare the obstruction a nuisance, and prayed that, as such, it be abated and the owner enjoined. Upon such cross-complaint, the city succeeded, and objection was made that the remedy afforded by the statute enabled the city to abate the nuisance, and excluded any remedy by the courts. This court held, quoting from Dillon's Munic. Corp., section 659, that "where, by its charter or constituent act, a municipality has the usual control and supervision of the streets and public places, it may, in its corporate name, institute judicial proceedings to prevent or remove obstructions thereon."
It is there further said that "the...
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