40 Ind. App. 289 | Ind. Ct. App. | 1907
This action was brought by the appellant to enjoin the appellees from placing on the tax duplicate of the city of Marion the assessments made against the several pieces of property owned by appellant, for the improvement of Second street of said city. A demurrer to the complaint was filed by appellees, and by the trial court overruled. The appellees filed their joint answer in two paragraphs. The appellant demurred to the second paragraph thereof, the court overruled said demurrer, appellant saved proper exceptions thereto, and thereafter the appellees withdrew their first paragraph of joint answer, which was a general denial. The appellant declined to plead further, and judgment was rendered against him.
The error relied upon by appellant is the overruling of the demurrer to the second paragraph of the joint answer.
The second paragraph of defendant’s answer discloses substantially the following facts: It admits the adoption of the resolution declaring the necessity for the improvement; that two weeks’ notice of the time and place for hearing objections to the same was duly given by publication; that plaintiff appeared at the time and place named in said notice, and his objections were duly considered and over
The resolution was adopted by the common council, whereby the clerk of said city was directed to place upon the city tax duplicate for collection the assessments against said lots of plaintiff.
In the ease cited Judge Howard, speaking for the court, said: “In this case, however, the city authorities, following what they deemed to be the spirit of the law, did refer the matter of the assessment to the city commissioners. No error resulted from this. The work of the commissioners took the place of a report by the city engineer. The council, in confirming and adopting the report of the commissioners, itself made the assessment. The report of the engineer, or, as in this case, of the commissioners, is for the information of the common council. The council may change or correct such report as it may deem right and just, and it is the final act of the council that constitutes the assessment.” This- being a collateral attack, it requires less ground upon which an estoppel may be based than if it were a direct attack upon the legality of the proceedings of the common council of the city of Marion. Ross v. Stackhouse (1888), 114 Ind. 200, 206; City of Elkhart v. Wickwire (1889), 121 Ind. 331; Elliott, Roads and Sts. (2d ed.), §592.
In the case of Ross v. Stackhouse, supra, Judge Mitchell, speaking for the court, said: “Unless, therefore, the law under which the assessment is imposed makes no provision for notice, or unless the proceedings under which the proposed improvement is to be made are totally void for want of the "observance of some condition necessary to the attaching of jurisdiction, the work cannot be arrested at any stage; and, in any event, one who acquiesces, with knowledge, until after the improvement has been completed cannot escape payment for the actual benefits received, even though the proceedings turn out to be void, provided the contractor proceeded in good faith and without notice from the property owner. He cannot enjoy the benefits and escape the burden, unless he interferes or gives notice before the'benefit is received.”
The work of improving a street is usually undertaken because public interests demand it. Yet the landowner whose property is affected thereby is the one most vitally interested in the improvement, and he above all others should inquire into the regularity or irregularity of the proceedings, but if he does not do so he will not be permitted to stand by until the work is completed, receive the benefits therefrom, and in a collateral way defeat the taxes so assessed against his property. City of Evansville v. Pfisterer (1870), 34 Ind. 36, 45, 7 Am. Rep. 214; Ross v.
In the light of the authorities cited, the second paragraph of the answer averred facts sufficient to estop the appellant herein from enjoining the collection of the taxes so assessed. The decision in the case of Pittsburgh, etc., R. Co. v. Oglesby (1905), 165 Ind. 542, is not in conflict with the doctrine of the cases to Avhich we have referred herein, or to the conclusion which we have reached. In that ease no estoppel was invoked, nor did the common council refer the civil engineer’s report to any tribunal to try and determine the benefits and damages of the property owners.
The judgment is affirmed.