Voris v. Pittsburg Plate Glass Co.
| Decision Date | 10 March 1904 |
| Docket Number | 20,219 |
| Parties | Voris v. Pittsburg Plate Glass Company et al |
| Court | Indiana Supreme Court |
Rehearing Denied December 8, 1904.
From Howard Superior Court; W. W. Mount, Special Judge.
Action by William H. Voris against the Pittsburg Plate Glass Company and Mary Lindley to enforce a street improvement lien on a back-lying lot. From a decree for defendants, the plaintiff appeals.
Reversed.
C. B Masslich, Willits & Voorhis and C. M. C. Buntain, for appellant.
Milton Bell, W. C. Purdum, J. C. Blacklidge, C. C. Shirley, Conrad Wolf, Charlton Bull and B. C. Moon, for appellees.
OPINION
Appellant brought this suit against the Pittsburg Plate Glass Company, the owner of back-lying real estate within 150 feet of a street in the city of Kokomo, improved in 1893, under the Barrett law, to enforce the lien of an assessment for said street improvement, on the ground that the subdivision primarily liable therefor had, at a judicial sale on a decree foreclosing said lien, proved insufficient to pay said assessment. A demurrer for want of facts was sustained to said complaint, and, appellant refusing to plead further, judgment was rendered against him. It appears from the complaint, among other things, that Joseph S. Amos was the owner of lots twenty and twenty-one, lying immediately upon and adjacent to the line of said street improvement, neither of which extended back 150 feet from the front line thereof; that appellee Pittsburg Plate Glass Company owned all the real estate lying back of each of said lots within said 150 feet. The city engineer, as required by § 4293 Burns 1894 (Acts 1889, p. 237, § 6), described in his report said lots twenty and twenty-one, and gave the name of Jacob S. Amos as the owner thereof. In said report the amount of the cost of the improvement due upon said lot twenty was $ 200.60, and upon said lot twenty-one was $ 212.50, which amounts were ascertained by the frontage of said lots, as provided in the fifth clause of § 4293, supra, but said back-lying real estate of appellee Pittsburg Plate Glass Company was not described in said report. After giving the notice required by § 4294 Burns 1894, being section seven of the act of 1889, supra, as amended by the act of 1891 (Acts 1891, pp. 324-326), "no objection being made to said engineer's report, the common council of said city adopted the same and the assessments without alteration or amendment."
The owners of the lots described in said report of the engineer signed and filed a written promise to pay said assessments as provided in § 4294, supra, and the city issued and sold street improvement bonds to pay for the improvement of said street, under § 4296 Burns 1894 (Acts 1889, p. 237, § 8). Appellant is the owner of all the bonds and the interest coupons attached thereto so issued by said city of Kokomo, and the same, to the amount of several thousand dollars, are due and unpaid. In a suit in the court below, brought by appellant for that purpose, he recovered a personal judgment against said Amos on said written promise, and a decree foreclosing said assessment lien against said lots twenty and twenty-one. Said lots were duly sold upon said decree, and the proceeds of said sale were not sufficient to pay the same. Said Amos was insolvent, and since the rendition of said judgment has been adjudged a bankrupt in the district court of the United States for the district of Indiana. Under § 4296, supra, appellant, as the owner of bonds, has all the rights and interest of said city of Kokomo in and to the assessments and liens for the improvement of said street, with full power to enforce the collection thereof by foreclosure.
It is provided in § 4290 Burns 1894 (Acts 1889, p. 237, § 3), that "the owners of lots or parts of lots bordering on such street or alley, or the part thereof to be improved, * * * shall be liable to the city for their proportion of the costs in the ratio of the front line of their lots owned by them to the whole improved line for street and alley improvements, * * * and the city or incorporated town shall have a lien upon such lots or parts of lots, respectively, from the time such improvement is ordered, for such costs of improvement, * * * and in making the assessment against such owners for the improvement of such lots or parts of lots and unplatted lands shall be assessed upon the ground fronting or immediately abutting on such improvement back to the distance of 150 feet from such front line, and the city or incorporated town and the contractor shall have a lien thereon for the value of such improvement: Provided, however, that where such land is subdivided or platted the land lying immediately upon and adjacent to the line of the improvement and extending back fifty feet shall be primarily liable to and for the whole cost of the improvement, and, should that prove insufficient to pay such cost, then the second parcel and other parcels in their order to the rear parcel of said 150 feet shall be liable in their order."
The word "of" between the words "improvement" and "such" in the part of said section above set out, is incapable of any sensible meaning, and the clause in which it appears is complete and sensible without it. It is evident that said word was inserted through inadvertence or mistake, and should be rejected. Black, Interp. of Laws, § 39; Sutherland, Stat. Constr., § 260, p. 342; Endlich, Interp. of Stat., §§ 301, 302.
Construing the above-quoted provisions of § 4290, supra, in connection with §§ 4293, 4294, supra, it is evident that the common council of the city or the board of trustees of the town assess the special benefits of the improvement to each lot or parcel of ground abutting thereon, to such lot or parcel of ground, regardless of whether the same extends back 150 feet or less from the front line thereof. Adams v. City of Shelbyville (1900), 154 Ind. 467, 490, 491, 57 N.E. 114, 49 L.R.A. 797, 77 Am. St. 484. The city or town engineer in his report under section six of said act of 1889 (Acts 1889, p. 237, § 4293, supra), only gives the description of the lots and parcels of ground bordering on the street or alley improved, and names of the owners thereof, and the amount of the cost for the improvement due from such lots or parcels of ground determined by the frontage, regardless of whether the same extend back 150 feet or less from the front line thereof. City of Terre Haute v. Mack (1894), 139 Ind. 99, 105-110, 38 N.E. 468. When, therefore, the common council of the city or board of trustees of the town have made the assessments to each of said abutting lots or parcels of ground so as to conform to the special benefits accruing to each of said abutting lots or parcels of ground, as provided in § 4294 Burns 1894, whether by adopting said report of the engineer as made, or after altering or amending the same, such assessments, by the express provision of § 4290, supra, are a lien, not only on the lots or parcels of ground bordering on said street or alley, but on the back-lying lots or parcels of ground, if any, within 150 feet of the front line thereof. While the subdivision or parcel of ground "lying immediately upon and adjacent to the line of improvement" must be first exhausted before the second parcel, and the others in their order, can be sold to pay the assessment, the same is a lien not only on said first subdivision or parcel, but on all the subdivisions or parcels lying back thereof within said 150 feet from the front line, to the extent provided in § 4290, supra, although owned by different persons, and who were not named in the report of the engineer or in the assessment made by the common council of the city or board of trustees of the town. Town of Woodruff Place v. Raschig (1897), 147 Ind. 517, 523, 524, 46 N.E. 990.
The notice by publication required by § 4294 supra, when made, gives the common council of the city or board of trustees of the town full and complete jurisdiction over the person of each person owning land within the taxing district of said improvement, whether the same abuts on the improvement or not. Said notice having been given, said owners of back-lying real estate, like the owners of real estate abutting on said improvement, are bound to know the law, and that their real estate is in the taxing district of said improvement, and will be subject to the lien of special benefits assessed in the manner and to the extent above stated. Hyland v. Brazil Block Coal Co. (1890), 128 Ind. 335, 340, 341, 26 N.E. 672. All of said owners of real estate within said taxing district, whether back-lying or abutting, have the right to appear before the committee or common council of the city or board of trustees of the town and be heard on the engineer's report, and object thereto, and have a hearing on the question of special benefits, which the law requires said common council or board of trustees to adjust so as to conform to the special benefits accruing to said abutting real estate. Adams v. City of Shelbyville (1900), 154 Ind. 467, 484-491, 57 N.E. 114, 49 L.R.A. 797, 77 Am. St. 484; Leeds v. Defrees (1901), 157 Ind. 392, 397, 61 N.E. 930; Hibben v. Smith (1902), 158 Ind. 206, 208-211, 62 N.E. 447. It is true that only the special benefits to the abutting lots or parcels of ground are assessed by the common council of the city or board of trustees of the town; but if any such lot or parcel of ground does not extend back 150 feet from the front line thereof, the owner of the real estate lying back thereof, and within said 150 feet, has such an interest in the assessment to such abutting lot or parcel of ground as entitles him to a hearing on the question of actual special benefits thereto, because his...
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