The Town of Rensselaer v. Leopold
| Decision Date | 25 March 1886 |
| Docket Number | 12,356 |
| Citation | 5 N.E. 761,106 Ind. 29 |
| Parties | The Town of Rensselaer v. Leopold |
| Court | Indiana Supreme Court |
From the Jasper Circuit Court.
The judgment is reversed, with costs, with directions to the court to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
E. P Hammond and S. P. Thompson, for appellant.
W. D Wallace and M. F. Chilcote, for appellee.
On the 18th day of September, 1883, the requisite number of resident freeholders of the town of Rensselaer presented to the town board of trustees a petition, asking that Van Rensselaer street, between Work and Susan streets, be narrowed from the width of seventy-five to sixty-nine and one-half feet.
Such proceedings were taken as that, on the 26th day of October 1883, an order was made by the board narrowing the street according to the prayer of the petition.
It may be inferred that an appeal was taken from this order, pursuant to the provisions of section 3372, R. S. 1881, although this is not directly shown in the transcript which was filed in the court below. As, however, both parties proceeded upon the assumption that an appeal was duly taken, we will without further examination in that respect regard the proceeding as having come properly under the jurisdiction of the circuit court.
In the court below, a demurrer was sustained to the transcript of the proceedings, had before the board of trustees, which was treated as a complaint. The ruling of the court in sustaining this demurrer is assigned for error.
The proceedings are assailed upon two grounds. Assuming in one aspect of the case, that they have been regularly taken, the objector nevertheless contends that the abutting owner of a lot has a private right in the street appurtenant to his lot, which he holds by an implied covenant that the street in front of his lot shall forever be kept open to its full width. Practically, his insistence is that a street can not be narrowed without the written consent of the abutting lot-owners. The conclusion of the appellee's argument at this point is, substantially, as stated by counsel, that the owners of lots in a town have a vested property right in the street upon which their lots abut, of which they can not be deprived without their consent, or without being awarded compensation for the property or right of which they are deprived. The conclusion, thus stated, may well be conceded. It may follow nevertheless, that a street may lawfully be improved by being narrowed according to the provisions of the statute, without the abutting lot-owner's consent, due compensation first having been made for any damage which he may sustain.
That the owners of lots abutting on a street have a peculiar and distinct interest in the easement in the street, is a well established doctrine of law. This interest is distinguished from the rights of the general public, in that it becomes an interest legally adhering to the contiguous grounds and the buildings thereon, by affording more convenient facilities for their use. This incorporeal right appendant, the advantage of the street to the lot of the owner, and to the buildings, improvements, walks, trees, etc., as the owner may have adjusted them to the street as existing, is a valuable property right which the law recognizes. This right can not be appropriated and taken from him against his consent, without compensation. Common Council, etc., v. Croas, 7 Ind. 9; Haynes v. Thomas, 7 Ind. 38; Tate v. Ohio, etc., R. R. Co., 7 Ind. 479; Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; State v. Berdetta, 73 Ind. 185 (38 Am. R. 117); City of Indianapolis v. Kingsbury, 101 Ind. 200 (51 Am. R. 749); Crawford v. Village of Delaware, 7 Ohio St. 459; Street Railway v. Cumminsville, 14 Ohio St. 523.
Without express authority to that end, the municipality can not release or discharge the right of the public in the streets, or apply any part of a street to a purpose different from the use to which it was dedicated. But when properly authorized, the public servitude may be discharged, while the private right or special property of the abutting lot-owner may be appropriated upon condition that due compensation is made.
This peculiar right of the abutting lot-owner may, like any other private property, be made subject to the power of eminent domain, and, in the exercise of that power, may be taken for a public use by due process of law.
It is said, however, that narrowing the street, whereby a strip five and a half feet in width off one side is abandoned to the adjoining property-owners, is not a public use; that this is nothing more than an indirect method of transferring part of the public street to private use.
While it is true, courts can not be precluded from an inquiry into the character of the use for which property is proposed to be condemned, yet the presumption is in favor of the public character of a use which is declared to be public by the Legislature. Unless it is apparent at first blush that the proposed use is not public, courts can not interfere with the discretion confided to a municipal body, in doing that which the statute expressly authorizes. Mills Eminent Domain, section 10, and authorities cited.
The Legislature, sections 3367, 3368, R. S. 1881, has confided to boards of trustees of incorporated towns plenary power over the streets. Such boards are authorized to "lay out, survey, and open new streets and alleys, and straighten, narrow, widen, grade, and gravel," etc., those already laid out. The means for ascertaining the amount of damages which will be sustained by persons whose property is appropriated by any of the improvements specified, are also provided.
This amounts to a legislative declaration that any or all of the specified improvements are of a public character, and that property appropriated in making such improvements is appropriated for a public use.
It does not affect the character of the improvement that, as a consequence of the extinguishment of the easement which the public has, and the appropriation of the private and distinct right of property which belongs to the abutting lot-owner in the strip of ground which it is proposed to abandon, the complete title to the abandoned strip is thereby vested in the respective lot-owners.
This is a mere incident to, or result which flows from, the improvement of the street. The narrowing of the street, it must be assumed, was ordered by the municipal authorities to subserve the public interest. Many reasons may have been apparent to the board of trustees why the public good required it.
The only other inquiry pertinent in this connection is, has the law provided a means for compensating the owners of lots who have a special property in the streets on which their property is situate, for the damage which the proposed improvement will impose upon them?
It only requires an examination of the sections of the statute already referred to, and those following in the same connection, in order to determine this inquiry in the affirmative.
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