| Ind. | Nov 15, 1868
The appellees were plaintiffs below, and alleged in their complaint, that Mary, wife of Daniel, owned a lot in Indianapolis, bounded on the south by Stevens street; that in pursuance of a city ordinance, the common council contracted with the appellants O’Connor-and Dorsey, to grade and gravel, the street and sidewalks thereof; that the work was completed on the 2d day of July, 1866; that in performing.it the appellants wrongfully took and appropriated a strip of the lot, seven feet wide, bordering on the street, broke down the fence, and removed the soil and made a sidewalk thereon, under pretense that the same was.a part of the street; that an estimate of the work done by the contractors has been made and approved by the council, and a precept awarded, against the lot for three hundred and eighty-eight dollars, the amount assessed against it, which the plaintiffs, by reason of the premises, refuse to pay; that the city treasurer,- made a defendant, has advertised and will sell the lot unless restrained-. Prayer for injunction, two thousand- dollars damages, and possession of the strip of ground.
We think that the complaint made no case for an injunction. According to its averments, something was properly chargeable against the lot on account of the improvement of the street-. Whatever was justly due should have been paid. Equity required this; and a party seeking equity must do equity. There is no warrant in sound principle or justice to sustain.an injunction restraining the collection of an
Nor does the complaint make a case for the recovery of the possession of real estate, for it does not sufficiently appear that possession is withheld.
But it does allege a trespass, and is therefore good on demurrer by O’Connor and Dorsey, the contractors. •
If what has been said concerning the complaint is correct, it follows that the third paragraph of the city’s answer was bad, and that the demurrer to it was properly sustained. It presented no answer at all to the only sufficient cause of action shown by the complaint.
The judgment of the court was not warranted by the complaint, and must be reversed, and a new trial awarded.
The evidence, indeed, strongly impresses us that there was no encroachment upon the plaintiffs’ property, and that if any portion of the lot was improved as a street, it had been previously dedicated to public use as a street. But upon this subject we prefer to determine nothing, inasmuch as that question must bo tried again.
The judgment is reversed, with costs, and the cause remanded for a new trial.