28 Ind. App. 126 | Ind. Ct. App. | 1901
The appellees, lot owners along a certain street in the city of Greensburg, brought this action to enjoin the collection of assessments against the real estate owned by them respectively on account of the improvement of said street. The amended complaint is in one paragraph. The cause was put at issue, a special finding of facts made, and. conclusions of law stated thereon.
Since this cause was tried and this appeal taken the Supreme Court have considered the act under which the improvement was made more carefully than had before been done. Section 4293 Burns 1901, gives to an affected land owner a right to be heard. The right to be heard carries with it the right to relief. Adams v. City of Shelbyville, 154 Ind. 467; City of Indianapolis v. Holt, 155 Ind. 222. This being so the time for appellees to have presented their grievances was that fixed by the council. Having failed to appear at that time they are, under well settled principles, bound by the assessment unless the proceedings were void.
It is argued that the assessment is not attacked collaterally but directly by way of injunction. A collateral attack is, generally speaking, one in which the invalidity of the judgment is predicated upon matters dehors the record. Thompson v. McCorkel, 136 Ind. 484, 43 Am. St. 334; Cully v. Shirk, 131 Ind. 76, 31 Am. St. 414; City of Bloomington v. Phelps, 149 Ind. 596. This attack is collateral. Kiphart v. Pittsburgh, etc., R. Co., 7 Ind. App. 122, 125; McEneney v. Town of Sullivan, 125 Ind. 407. When the elements of fraud and mistake are involved, the attack is direct. Earle v. Earle, 91 Ind. 27; Thompson v. McCorkel, supra.
Ho fraud or mistake is here charged and unless the pro
The common council is the exclusive tribunal to determine when and what property is benefited by the improvement and its action is subject to review collaterally for fraud or corruption. Crawfordsville Music Sail Assn. v. Clements, 12 Ind. App. 464; Klein v. Tuhey, 13 Ind. App. 74; City of Fort Wayne v. Cody, 43 Ind. 197.
The appellees contend that the proceedings were void for two reasons, (1) that the sewer is a general sewer, and not a local one, and the assessment therefor made without any ■authority vested in the council to make it, and (2) that the proceedings were void for the failure to specifically state, in the resolution declaring the necessity of the improvement, that it included.sewers or drains.
Whether the sewer was local or general is a question, which, under the statute, must be decided in the first instance by the council. §4274 Burns 1901. That decision having been made is, as against a collateral attack, final.
The resolution declared the necessity of a certain street improvement. It twice referred to plans and specifications ■on file in the office of the city engineer. Such plans and specifications contained full information. “The end to be attained, however, namely, the better preparation of the street for public travel, must evidently determine the nature of the improvement to be made. Tire mere grading of the 'street may be deemed sufficient in some instances. Afterwards, it may be thought necessary to raise the center or road bed, and sink gutters along the sides, so as to make a dryer and firmer highway. If the travel increases, graveling may be thought needful. Finally, the board may be of opinion that the street has become so important a thoroughfare that it should be paved with brick or stone. If the ground were low and wet, it would seem that, in connection with any of these improvements, it might be necessary to
The right to construct sewers is incidental to the power of a municipal corporation to maintain streets. Leeds v. City of Richmond, 102 Ind. 372; City of Fort Wayne v. Coombs, 107 Ind. 75; Schipper v. City of Aurora, 121 Ind. 154, 6 L. R. A. 318. The basis of all substantial street improvement is found in complete drainage. It would not be competent to build a system of general sewers under the pretext of paving a street. Neither is it possible that tile drains may not properly be a part of such street improvements.
The exhibit was made part of the resolution by the reference. Its adoption was not necessary to give jurisdiction to the council. Hughes v. Parker, 148 Ind. 692; Barber Asphalt, etc., Co. v. Edgerton, 125 Ind. 455.
There are a number of other reasons for the reversal of the judgment which have not been adverted to, inasmuch as it is to the interest of all concerned that a final disposition of the litigation be made. The conclusions of law are not sustained by facts found.
Judgment reversed, with instructions to restate conclusions of law and render judgment for the appellants.