The City of Richmond v. Smith

• Decision Date: 16 September 1897
• Docket Number: 18,187
• Citation: 47 N.E. 630,148 Ind. 294
• Parties: The City of Richmond et al. v. Smith
• Court: Indiana Supreme Court

47 N.E. 630

148 Ind. 294

The City of Richmond et al. v. Smith

No. 18,187,

Supreme Court of Indiana

September 16, 1897

From the Wayne Circuit Court.

Affirmed.

A. C Lindemuth, for appellants.

R. A Jackson, H. C. Starr and J. F. Robinson, for appellee.

OPINION

Howard, J.

This was an action brought by the appellee to enjoin the appellants, being the city of Richmond and Edwin O. Dunham, market master of said city, from maintaining a market place upon a public street adjoining her premises.

The facts were found by the court, and are not in dispute. They are substantially as follows: The appellee is the owner of a lot fronting 100 feet on North A street between Fourteenth and Fifteenth streets in the city of Richmond. Said street is a public highway eighty feet in width, with sidewalks each fourteen feet wide, leaving a roadway fifty-two feet in width. The sidewalks and roadway are graveled and macadamized, and the gutters bouldered. On July 16, 1894, the common council of the city, at a regular meeting, by resolution duly passed, designated the south side of North A street, between Fourteenth and Fifteenth streets, as and for a market place, and directed the appellant, Dunham, to hold public markets thereat, on Tuesdays Thursdays, and Saturdays of each week, from the first day of June to the first day of November in each year, and from 5 o'clock a. m. to 9 o'clock a. m. on each of said days. Such markets were so held from July 21, 1894, until September 20, 1894, when they were restrained by the court. No market house or other structure, permanent or temporary, was erected or attempted to be erected on said street. The manner of holding the said market was to back the market wagons to the curb, the horses attached to the wagons facing the center of the street, the teams being about three feet apart along the sidewalk. Tables or temporary stands were stationed on the sidewalk for the display of vegetables and other products. The south half and also a part of the north half of North A street was left open for public travel. After the market hours of each day the street was at once cleaned up, and all refuse which had accumulated was removed. No residences front on the part of the street where the market was held, except that a side door and window of appellee's house look out upon said portion of said street. All the owners of lots fronting on said market place, except appellee, consented to the location of the market; but the market was located and held without her consent, against her wishes, and over her protest. The average number of wagons on market days was about thirty-five, and many people attended. The horses stamped and neighed, also befouled the street and attracted great numbers of flies. No legal proceedings of any kind, except the resolution aforesaid, were ever had for the appropriation of the street for such market, nor...