78 Ind. 1 | Ind. | 1881
Appellees’ complaint is in two paragraphs. • One at least is good, and, as the demurrer was addressed to the entire complaint, it was properly overruled, even though one of the paragraphs is bad.
The complaint alleges, in substance, that the City of Aurora, without having adopted any general plan for the improvement of the streets, and without having advertised for proposals, and also without having entered into a written contract, proceeded to dig into and cut down a street upon which appellees’ house and lot were situated, and without right hauled away and appropriated the soil of said street.' It is further alleged that by reason of the cutting down of said street the appellees’ property was greatly injured. The complaint states a case within the rule declared in City of Delphi v. Evans, 36 Ind. 90; for it shows a wrongful carrying away of the soil of the street.
A demurrer was sustained to the second paragraph of the appellants’ answer, but no available error was committed, even if it be conceded that the pleading was sufficient, for the
The error alleged upon the ruling denying a new trial presents all the other questions in the case. Testimony was admitted over the objection of the appellant as to the cost of erecting a wall along the line of appellees’ lot. This ruling was' not erroneous. If the appellants’ wrongful act made it necessary for the protection of appellees’ property to erect the wall, its cost was a proper element for the jury to consider in estimating damages. It is, however, contended by the appellants’ counsel that no wall was necessary. Whether there was or was not a necessity for the wall was a question of fact for the jury.
Michael Teany, one of the appellees’ witnesses, was permitted to testify as to the proceedings of the common council of the city of Aurora, and as to the declarations of individual members of that body. An objection was interposed and overruled. The ground of objection was that the proceedings of the common council could not be proved by parol. No effort was made to secure the production of any of the corporate records, nor was it shown that no record had been made. The custodian of the records was not called; neither was there any notice to produce the corporate records. It is clear to our minds that the court erred in admitting this testimony. The record of the proceedings of the common council was the primary evidence. Until some valid excuse was shown for- not producing the primary evidence, secondary was not admissible. There are cases where corporate proceedings may be shown by oral testimony, but this is not one of them.
The third instruction given by the court contains the following statement: “ To the city, howev.er, belongs the right, under the corporate powers conferred upon it by the charter, to grade and improve Square street, and use the same for the purpose of a highway. But before the city can make such improvements certain provisions of the city charter must be complied with. First, an order, resolution or ordinance must
The court, by these instructions, required of the appellant as strict an adherence to the provisions of the charter as would have been necessary had the case been one against a property owner for the collection of an assessment. The theory of the trial court was, that the city is liable as a trespasser, if every statutory provision is not complied with. The case is, it must be kept in mind, a very different one from that of a proceeding to enforce the collection of an assessment for a street improvement. The municipal corporation, in making an improvement of a street over which it possesses “plenary power,” as was said in Wood v. Mears, 12 Ind. 515, is doing a very different thing from enforcing a summary remedy for the collection of the cost of an improvement from adjacent property owners. The appellees rested their case in the trial court, and rest it here, upon the case of The City of Delphi v. Evans, 36 Ind. 90. There are expressions in the opinion in that case which do sustain the appellees’ theory, that a
It is clear that the case from which we have quoted does not decide that a municipal corporation is a trespasser, if it excavates a street for the purpose of grading, unless it has proceeded strictly in accordance with the provisions of the charter empowering it to collect the cost of the improvement from the adjacent lot owners. What is said in the opinion lending support to such a doctrine as that for which appellees contend, can not be supported upon principle or authority.
The right to the soil of the street remains in the owner of the fee, and the municipal corporation has no right to remove it, unless its removal be necessary for the improvement of the street. The removal of the soil for any other purpose than that of improving the street is an actionable wrong.
We can not yield to the doctrine that a municipal corporation is to be deemed a trespasser, and liable as such, where the improvement of a street is ordered pursuant to an accepted plan and by a duly enacted ordinance, because there is some defect in the manner of awarding and evidencing the contract. There is no reason for applying to a case in which the corporation is sued as a trespasser the same rule as that which obtains in cases where there is an effort to enforce a summary statutory remedy for the collection of a local assessment. The cases are altogether dissimilar. The feet, that the advertisement was for a period of one day or two days less than the time prescribed, ought not to be allowed to put upon the corporation the liability of a trespasser. Nor ought the failure of the contractor to give bond, or of the clerk to make the proper record of the vote, to have any such effect. It is imposing an unreasonable burden upon municipal corporations to require them in all cases to proceed in exact accordance with the provisions of the sections of the charter which confer authority to collect the cost of improving streets from the adjacent lot owners. No good purpose is subserved by the imposition of such a burden. The omission of some matter, such as the failure to record the vote, resolution or ordinance, can not do the property owner who sues for the trespass any possible harm. Whether the advertisement was in strict accordance with the law, or whether the contract was signed by the contractor, or such like matters, can not, in any way, impair the rights of one whose property is affected by the improve
The 68th, 69th, 70th and 71st sections of the general act for the incorporation of cities are intended to apply to cases where the municipal corporation seeks to compel the lot owners to pay the expense of improving the street upon which their lots abut. They were not intended to limit the general powers conferred by other provisions of the statute. It has been decided over and over again by this court that the municipal corporation has plenary power over the streets and highways within its corporate limits. In one ease it was said: “ It has full authority to repair the streets, and construct drains and sewers. If it does this with proper skill and care, and without malice, as the paragraph alleges in substance, and consequential injury results to the citizen, he has no remedy.” City of Vincennes v. Richards, 23 Ind. 381. In Wood v. Mears, supra, the court quoted the following from the general act: “The common council shall have exclusive power over the streets, highways, alleys, and bridges within such city, and to lay out, survey, open, straighten, widen, or otherwise alter the same, to make repairs thereto, and to construct and establish sidewalks, crossings, drains and sewers; ” and said: “ This section confers upon the common council plenary power over the streets and alleys of the city.” There are many cases in which this rule is declared and enforced. If the provisions of the 67th, 68th, 69th and 70th sections were removed from the statute, there would remain ample power to grade and re-grade streets. There are very many provisions conferring this authority. The authority to make the improvement exists without the sections cited, but without them the expense would have to be borne by the municipality. They were not intended to confer general powers to improve, but were intended to invest the corporate officers with authority to collect the expense from owners of .property abutting on the street.
A corporation, with ample general authority to improve streets, can not be deemed a trespasser because the proceedings are not in strict compliance with the provisions of the statute regulating proceedings in cases where the improvements are to be made, not at the expense of the municipal treasury, but at the expense of individual property owners. This seems so plainly right upon principle that support is not needed from adjudged cases. There is, however, a case in our own reports which declares this doctrine. In The City of Terre Haute v. Turner, 36 Ind. 522, the complaint was, in its essential features, similar to that in this case, and the defendant’s answer was, so far as concerns the question in hand, substantially, as follows: That the common council of the said city, during the last summer, considered it was necessary, and that public convenience required, that said street in front of said warehouse should be so graded as to render the street uniform, and by a two-thirds vote ordered that said street be so graded and gravelled; that said order, with the yeas and nays thereon, was duly entered upon the record as a part of their proceedings ; that pursuant to said order the defendant caused the work to be done. It will be observed that this answer does not aver that there was an advertisement for proposals; nor does it aver that any contract was awarded nor that a bond was executed. This answer was held good, and the judgment reversed because a demurrer was sustained to it in the court below. The ruling in the case under immediate mention is the correct one, and is in direct conflict with many of the expressions contained in the opinion in City of Delphi v.
The appellants asked, and the court refused, the following-instruction : “ If you find from the evidence that the common council of the city of Aurora established the grade of the street in question; that a plan for such grade was fixed, and stakes set on the street indicating the depth of excavation to make the proper grade; that such plan for the grade of the-street was accepted by the common council on the fifteenth day of September, 1876, and that on that day the common council passed an ordinance by a two-thirds vote of the council for the grading of the street according to the specifications-of the said plan for the improvement; that the common council caused the work to be done by Thomas L. Chrisman; that, he removed the earth from the street, and graded the same in conformity with the plan so fixed for the improvement of the street; that the work was done carefully and skilfully, doing-the property of the plaintiff no unnecessary injury, and that, in grading said street plaintiff’s lot was not interfered with, and that the common council were not actuated by malice or ill-will toward the plaintiff in adopting said plan and in making said improvement; your verdict should be for the defendant.” •
This instruction is, in the main, a correct statement of the-law, but in one particular is erroneous. It does not correctly state the law upon the question of the right of the city to remove the soil from Square street. The city, as we have-already said, had no right to remove the soil, unless it was-necessary for the improvement of the street, nor had it any right to use the earth taken from the street for any other purpose than that of grading streets forming part of the same-general plan of improvement.
In one of the instructions it was said: “If the jury find that the common council ordered that a survey be made of Square street, fixing the grade and plan of improvement, thereon, and that a competent person performed such duty,,
Judgment, reversed.