Town of Brownsburg v. Trucksess
| Decision Date | 19 April 1933 |
| Docket Number | 14,414 |
| Citation | 185 N.E. 315,98 Ind.App. 322 |
| Parties | TOWN OF BROWNSBURG v. TRUCKSESS ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 30, 1933.
Transfer denied March 9, 1934.
From Montgomery Circuit Court; Edgar A. Rice, Judge.
Action by French Edward Truckess and others against the Town of Brownsburg and others to enjoin assessments for improvements of a street paved in part by the State Highway Commission. From a judgment for plaintiffs, defendants appealed.
Reversed.
Arthur Metzler, Edgar M. Blessing, and Harney Semones, for appellants.
Andrew N. Foley, Bernard B. Foley, Silas C. Kivett, and Joseph T Kivett, for appellees.
The appellees (plaintiffs below) brought this action as property owners of the Town of Brownsburg against appellants to set aside and cancel assessments levied against real estate of appellees for paving a portion of Main Street of said town under the Barrett Law and to enjoin appellants from taking any steps to enforce the collection of the assessments, the complaint being upon the theory that the State Highway Commission had complete jurisdiction over said Main Street and that the Town of Brownsburg had no authority or jurisdiction to levy the assessments. The assessments were for the construction of two strips of paving nine feet wide (on either side of an eighteen foot strip through the center of the street) laid by appellant, Indiana Road Paving Company, under a contract with said town.
The complaint was in one paragraph, and was not filed until the work of appellant, Indiana Road Paving Company, was fully performed and the pavement entirely completed, and the final assessment roll approved and ordered delivered to the town treasurer.
The appellants other than Indiana Road Paving Company filed an answer to the complaint in two paragraphs, the first of which was a general denial. To the second paragraph of answer appellees filed a demurrer on the ground that it did not state facts sufficient to constitute a cause of defense. This demurrer was overruled. Appellant Indiana Road Paving Company also filed an answer in two paragraphs, the first of which was a general denial, and to which second paragraph appellees filed a demurrer. This demurrer was overruled and appellees filed replies in denial to said second paragraph of answer.
Trial by court with a request by appellants and appellees for a special finding of facts and conclusions of law thereon.
The conclusions of law were as follows:
The court rendered judgment in favor of appellees, setting aside the several assessments purporting to constitute a lien upon the separate and several properties of appellees and perpetually enjoined appellants and each of them and their respective successors in office from taking any steps or performing any acts or prosecuting any proceedings to enforce collection of any assessments against the appellants or any of them and/or as against the several properties of appellants.
Joint and several motions for a new trial were filed, which were overruled. Errors assigned here are the overruling of said motions, and that the court erred in its conclusions of law numbers 1, 2, and 3.
The question presented is--does a town of not to exceed 2500 population have the power and right to improve the extra width of a street and charge the cost of the same to the abutting property when such street has been designated as a state road by the highway commission and an eighteen foot strip through the center thereof improved by the commission.
The agreed statement of facts and the special findings disclose that the town met all the requirements of the so-called Barrett Law and proceeded regularly under that law to and including the final acceptance of the work of the paving company in the improvement of that part of Main Street of the town not improved by the commission, and that all this was done after the filing with the town of a petition signed by a majority of the property owners on Main Street asking the town to improve the extra width of Main Street, and that the work of paving the extra width under the contract with the town was done after the 18 foot strip of concrete was caused to be laid by the commission along the center of the street and that the paving of the extra width was completed prior to July 9, 1928.
It is an undisputed fact that the petition of a majority of the property owners to pave the extra width was filed on May 18th, 1927, whereas the entry in the records of the commission adding to the state highway system the diagonal road from Indianapolis to Crawfordsville was not made until June 16, 1927, and that on June 15, 1927, the day before the entry was made by the commission, the town assumed jurisdiction over the improvement of a part of Main Street and that day passed the preliminary resolution for such improvement, and thereafter proceeded regularly to make the improvement.
The agreed stipulation of facts and the findings disclose further that prior to the completion of the improvement of the extra width of Main Street by the paving company, no notice or remonstrance in writing was presented or filed with the town or any officers thereof by any of the appellants or any other property owner questioning the validity of the proceedings or authority of the town to construct the improvement nor to assess the costs thereof to abutting property owners, nor were there any objections or remonstrances of any kind or character filed with the town in any way questioning the amount of the assessed benefits as shown in the assessment roll, prior to the completion of the work. Finding 24 of the court shows that...
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