Town of Rensselaer v. Leopold

Citation106 Ind. 29, 5 N.E. 761
Case DateMarch 25, 1886
CourtSupreme Court of Indiana

106 Ind. 29
5 N.E. 761

Town of Rensselaer
v.
Leopold.

Supreme Court of Indiana.

Filed March 25, 1886.


Appeal from Jasper circuit court.

[5 N.E. 762]


S. P. Thompson and E. P. Hammond, for appellant.

M. F. Chilcote and W. D. Wallace, for appellee.


Mitchell, J.

On the eighteenth 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 75 to 69 1/2 feet. Such proceedings were taken as that on the twenty-sixth 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, Rev. St. 1881, although this is not directly shown in the transcript which was filed in the court below. As, however, both parties proceed 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 cannot 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 cannot 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 the law. This interest is distinguished

[5 N.E. 763]

from the right 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 incorporated 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 cannot be appropriated and taken from him against his consent, without compensation. Common Council v. Croas, 7 Ind. 9;Haynes v. Thomas, Id. 38; Tate v. Ohio & M. R. Co., Id. 479; Protzman v. Railroad Co., 9 Ind. 467;State v. Berdetta, 73 Ind. 185;City of Indianapolis v. Kingsbury, 101 Ind. 200;Crawford v. Village of Delaware, 7 Ohio St. 459;Street Ry. v. Cumminsville, 14 Ohio St. 523. Without express authority to that end, the municipality cannot 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, where 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 cannot 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 cannot interfere with the discretion confided to a municipal body in doing that which the statute expressly authorizes. Mills, Em. Dom. § 10, and authorities cited. The legislature (sections 3367, 3368, Rev. St. 1881) has confided to boards of trustees of incorporated towns plenary power over the...

To continue reading

Request your trial
51 practice notes
  • Fountain Park Co. v. Hensler, No. 24535.
    • United States
    • Indiana Supreme Court of Indiana
    • February 25, 1927
    ...Ind. 342, 90 N. E. 474, 26 L. R. A. [N. S.] 609;Mull v. Indianapolis, etc., Tract. Co., 169 Ind. 214, 81 N. E. 657;Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761;Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 26 S. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174). [8] On the other hand, ......
  • The Great Western Natural Gas And Oil Co. v. Hawkins, 4,045
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1903
    ...question, and not a legislative one." Logan v. Stogsdale, 123 Ind. 372, 8 L. R. A. 58, 24 N.E. 135, citing Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761; Sadler v. Langham, 34 Ala. 311; In re Deansville Cemetery Assn., 66 N.Y. 569, 23 Am. Rep. 86; Bankhead v. Brown, 25 Iowa 540; Ty......
  • Great Western Natural Gas & Oil Co. v. Hawkins
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1903
    ...question, and not a legislative one.” Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58, citing Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761; Sadler v. Langham, 34 Ala. 311; In re Deansville Cemetery Ass'n, 66 N. Y. 569, 23 Am. Rep. 86;Bankhead v. Brown, 25 Iowa, 540;......
  • Hirt v. City of Casper, 2162
    • United States
    • United States State Supreme Court of Wyoming
    • June 11, 1940
    ...* * * abutting owners may be condemned without taking any estate in the land to which they pertain." In The Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761, the court stated: "That the owners of lots abutting on a street have a peculiar and distinct interest in the easement in the st......
  • Request a trial to view additional results
45 cases
  • Fountain Park Co. v. Hensler, No. 24535.
    • United States
    • Indiana Supreme Court of Indiana
    • February 25, 1927
    ...Ind. 342, 90 N. E. 474, 26 L. R. A. [N. S.] 609;Mull v. Indianapolis, etc., Tract. Co., 169 Ind. 214, 81 N. E. 657;Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761;Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 26 S. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174). [8] On the other hand, ......
  • Great Western Natural Gas & Oil Co. v. Hawkins
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1903
    ...question, and not a legislative one.” Logan v. Stogsdale, 123 Ind. 372, 24 N. E. 135, 8 L. R. A. 58, citing Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761; Sadler v. Langham, 34 Ala. 311; In re Deansville Cemetery Ass'n, 66 N. Y. 569, 23 Am. Rep. 86;Bankhead v. Brown, 25 Iowa, 540;......
  • Hirt v. City of Casper, 2162
    • United States
    • United States State Supreme Court of Wyoming
    • June 11, 1940
    ...* * * abutting owners may be condemned without taking any estate in the land to which they pertain." In The Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761, the court stated: "That the owners of lots abutting on a street have a peculiar and distinct interest in the easement in the st......
  • Bemis v. Guirl Drainage Co., No. 22543.
    • United States
    • Indiana Supreme Court of Indiana
    • June 4, 1914
    ...Ed.) p. 777, and cases cited; Richland School Township v. Overmeyer (1905) 164 Ind. 382, 73 N. E. 811;Town of Rensselaer v. Leopold (1886) 106 Ind. 29, 5 N. E. 761;Pittsburgh, etc., R. Co. v. Town of Wolcott (1904) 162 Ind. 399, 404, 69 N. E. 451;Dronberger v. Reed (1859) 11 Ind. 420;Jeffer......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT