Town of Greendale v. Suit

• Decision Date: 01 July 1904
• Docket Number: 20,353
• Citation: 71 N.E. 658,163 Ind. 282
• Parties: Town of Greendale v. Suit et al
• Court: Indiana Supreme Court

71 N.E. 658

163 Ind. 282

Town of Greendale v. Suit et al

No. 20,353

Supreme Court of Indiana

July 1, 1904

From Dearborn Circuit Court; N. S. Givan, Judge.

Action by the town of Greendale against Calvin Suit and others. Decree for defendants and plaintiff appeals. Transferred from the Appellate Court under § 1337u Burns 1901.

Reversed.

W. N Hauck and M. H. Stevens, for appellant.

C. J Lang and M. J. Givan, for appellees.

OPINION

Gillett, J.

This action was brought by appellant against appellees to establish and enforce a lien for the cost of building a cement walk for a distance of 682 feet on the west side of Ridge avenue, in said town, along and abutting upon certain real estate. A demurrer to the complaint was overruled. Issues of fact were framed, and there was a finding and a judgment for appellees. A motion for a new trial was filed by appellant, which was overruled, and that ruling is assigned as error.

Upon the trial of the cause the court permitted certain prior ordinances, providing for the building of a cement walk along said route, to be read in evidence, and also, over objection and exception, permitted certain remonstrances to the ordinances last mentioned to be introduced. Appellees' counsel first seek to justify the ruling last mentioned by the assertion that, after property owners have successfully remonstrated against an improvement, under the act of March 4, 1899 (Acts 1899, p. 411, § 4289a Burns 1901), the board has no further authority to proceed. Here, however, the specifications for the improvement under the ordinance pleaded in the complaint were different from the specifications of the preceding ordinances, and for this reason we are of opinion that the point made by counsel, as stated above, is not well taken.

It is next insisted on behalf of appellees that the complaint is insufficient, and that, therefore, the judgment should be affirmed, irrespective of any intervening error. We shall consider the two propositions involved in this insistence in the order mentioned.

It appears from the complaint that the proceeding for the building of said walk was had under the act of February 14, 1859 (Acts 1859, p. 184, § 4394 et seq. Burns 1901). The real estate against which the lien is sought is shown by the complaint to consist of two tracts containing respectively forty-one and sixty-seven hundredths acres and fifty-two and twenty-two hundredths acres. It does not appear in the complaint that said tracts are town lots. The act mentioned is entitled "An act to compel owners of town lots to grade and pave or plank sidewalks, and fixing the penalty thereto." The title of the act is an efficient index of the character of the enactment. So far as we have been able to ascertain, in all of the other acts of this State which authorize municipalities to make street improvements, there is some term of broader significance coupled with the word "lots." In Ontario Land, etc., Co. v. Bedford (1891), 90 Cal. 181, 184, 27 P. 39, it is stated that "the ordinary meaning of this word [lot], when used with reference to town or city property, is a subdivision of a block, according to the map or survey of such town or city." See, also, 19 Am. and Eng. Ency. Law (2d ed.), 586; White v. Gay (1837), 9 N.H. 126, 31 Am. Dec. 224; City of Evansville v. Page (1864), 23 Ind. 525; Collins v. City of New Albany (1877), 59 Ind. 396; Glover v. City of Terre Haute (1891), 129 Ind. 593, 29 N.E. 412. Strict construction is the rule as applied to statutes of this character, and no other assessment than such as the statute prescribes can be made. Niklaus v. Conkling (1888), 118 Ind. 289, 20 N.E. 797; Elliott, Roads and Sts. (2d ed.), § 544. We are therefore of opinion that the act of 1859 did not authorize the fixing of a lien upon the property described in the complaint.

In a case where the reliance of the municipality is upon acquiescense on the part of the landowner in such circumstances as to preclude him from questioning his liability, and it is impossible to state a cause of action under the statute and yet keep within the facts, the plaintiff should tender an issue in his complaint upon the matter of the acquiescence relied on. Taylor v. Patton (1903), 160 Ind. 4, 66 N.E. 91. There is no such showing in the complaint before us, and appellees' counsel are correct in their assertion that said pleading is insufficient.

It does not, however, follow that upon this state of the record the judgment below should be affirmed, notwithstanding the erroneous ruling pointed out. As stated above, the court below overruled a demurrer to the complaint. Now, if we refuse to reverse, for an error committed during the trial because the complaint is insufficient, the result is that by means of these different theories as to the law the appellant has been misled. In the case of Field v. Brown (1896), 146 Ind. 293, 45 N.E. 464, where it was urged that a judgment against the appellant therein should be affirmed because his complaint was insufficient, this court said: "There is no question about the rule, but it has this qualification: 'If the wrong ruling asserts a definite and clearly marked theory, * * * unless the record shows the contrary, and if that theory is wrong and probably works injury, there is error.' Elliott, App. Proc., § 590. And if a ruling upon the formation of the issues is wrong, it may be corrected by the court, but it must be done at such time and in such manner as not to prejudice the...