Town of Sullivan v. Phillips

• Decision Date: 07 April 1887
• Citation: 11 N.E. 300,110 Ind. 320
• Parties: Town of Sullivan v. Phillips and others.
• Court: Indiana Supreme Court

110 Ind. 320

11 N.E. 300

Town of Sullivan

v.Phillips and others.

Supreme Court of Indiana.

April 7, 1887.

Appeal from circuit court, Sullivan county.

Beasley & Williams, for appellant. Briggs & Hultz and W. S. Maple, for appellees.

ELLIOTT, C. J.

Several owners of lots abutting on one of the streets of the town of Sullivan joined in the complaint in this suit, and asked a decree enjoining the town from constructing a drain along the street on which their lots abut. It is contended by the appellant that the appellees cannot maintain a joint suit. We think otherwise. They are all jointly interested in preventing the wrong sought to be enjoined, and will all suffer injury from it, so that they are jointly interested, although the degree of injury that may be suffered may not be the same to each individual. The complaint makes a case within the rule laid down in Tate v. Ohio, etc., Co., 10 Ind. 174. The principle there declared applies here, for here the wrongful act sought to be enjoined is a continuous act, affecting all of the plaintiffs, and is not a series of independent acts, affecting each individual plaintiff alone. The decision in Heagy v. Black, 90 Ind. 534, must be limited to a case where the wrong is a distinct and independent trespass to each property owner, and that decision is not to be extended to such a case as the present. It is better for the public, better for the municipal corporation, and better for the property owners that there should be a joint action, rather than many independent ones. It is undoubtedly true that, as a general rule, courts cannot interfere with the power of a municipal corporation to determine for itself the best method of constructingdrains and sewers, for this is a discretionary power committed to the municipal authorities, but they can prevent the corporation from collecting the water in one body or channel, and pouring it upon the property of a citizen. As long as the corporate authorities keep within the discretion conferred upon them, they are the exclusive judges of the plan and method of constructing drains and sewers. Leeds v. City of Richmond, 102 Ind. 372, 1 N. E. Rep. 711; City of Kokomo v. Mahan, 100 Ind. 242;Macy v. City of Indianapolis, 17 Ind. 267. In this case the complaint is good because it avers that the town is attempting to collect the water in one channel, and cast it upon the lots of the plaintiffs. Weis v. City of Madison, 75 Ind. 241, and cases cited; Cummins v. City of Seymour, 79 Ind. 491;City of Evansville v. Decker, 84 Ind. 325;Hebron, etc., Co. v. Harvey, 90 Ind. 192;Lipes v. Hand, 104 Ind. 503-508, 1 N. E. Rep. 871, 4 N. E. Rep. 160; Pettigrew v. Village of Evansville, 25 Wis. 223;Gregory v. Bush, ...