33 Ind. 435 | Ind. | 1870
Lead Opinion
The power of tbe common pleas judge in
In this case, a restraining order, without notice, was granted in vacation, on the 12th of June, 1869, to expire on the second day of the next term of the circuit court, which would be a period of more than six months. This was in plain violation of the statute, and for that reason there must be a reversal. By sec. 139 of the code it is provided that the order shall only be granted until notice can be given, and a hearing had thereon. A reasonable time in which to give the notice must of course be allowed, but the period of six months is entirely too long.
The case is also argued upon the merits, as the facts .arc alleged to be by the complaint. Briefly, this is the case: the-plaintiff-operates .a woollen mill -propelled by water .supplied by ;an artificial race, the water from which is used also in coloring the goods manufactured, pure water being required therefor. The defendant is rapidly cutting a ditch for the draining of its streets, to discharge into the race, which will so contaminate the water thereof with filth as to render it unfit for use in coloring, and this will be accomplished in two or three days, if not arrested; that it will also carry sand into the plaintiff’s race, obstructing the flow of water to the mill; that the defendant, an incorporated city, is-making said -ditch as a part of the work of grading Harrison street,.according to a new and changed grade thereof, a different grade having been previously established.; .and that damages to the plaintiff'resulting from .such -change of grade have not been assessed or tendered- The race .at the point of intersection with the proposed-ditch is outside .of the city, -its margin being the boundary of the city.
The statute provides that the common -councils of cities shall have exclusive power over the streets thereof. Acts 1867, p. 63, sec. 61. But the twenty-seventh section of the -same act declares that when the grade of a, street has been once established, it shall not be changed without first aseessing and tendering-the-damagesoccasioned by the change.
Reversed, with costs, and remanded for further proceedings.
Concurrence Opinion
I concur in the opinion of Frazer, J., in the reversal of the restraining order granted by the judge in vacation, for the reason stated. And I also concur in the conclusion that the complaint presents- facts sufficient to authorize an injunction, but for a very different reason from that stated in the ©pinion. The complaint shows that the race, into which the city was- constructing a sewer for the purpose of drainage, is the private property of the plaintiff constructed for the purposes stated, and is outside of the city limits, and I hold that, independent of the question of a change of grade ©f the streets, the city has no-authority or right to conduct the drainage of the street» into the race, and thereby destroy the use for which it was constructed. It is true, that the city has exclusive jurisdic-’ tion over the streets and alleys within the corporate limits; but that does not confer on- it authority to-gather the drainage of the streets into a sewer and discharge, it upon the-private property of a person outside of the limits of the city, to his injury. No- such power is conferred by the city charter, nor could it be except by the exercise ©f the power of eminent domain, to take private property for public use; and in such cases the damages must first be assessed and. paid before the property can be appropriated.. I cannot see-
Indeed, if the race were within the city limits, I should not be prepared to hold that the city, by virtue of its jurisdiction over the streets, could use the race as an outlet to the sewerage of the city to the injury of the plaintiff", without compensation. It would be virtually taking or appropriating private property to the public use, which can only be done upon the assessment and payment of the damages.