| Ind. | Jun 7, 1860
The appellees aver that they are severally the owners of lots fronting on Ferry street, in Lafayette; that the appellants are proceeding to alter said street along and in front of said lots, and to construct sidewalks, &c., and declare their intention, in so doing, to excavate the earth in said street, in front of said lots, to the depth of from one to six feet; that the work is already commenced, and will greatly damage said plaintiffs, by causing the earth and fences of plaintiffs adjoining said street to fall into the said street, and by rendering said lots less easy of access, and leaving their surface so high above the said street that to construct buildings on a line therewith great expense will have to be incurred in cutting the same down, and damage result from cutting shade-trees and shrubbery; that to maintain the same from falling into the street, much expense will have to be incurred in erecting walls, &c.; that there has been no assessment of damages, nor compensation made or tendered, &c. There was a prayer for an injunction.
Answers, &c., were filed, which fairly presented the question whether the city, under the general law for the incorporation of cities, of March 9, 1857, can so excavate or raise a street, as to seriously damage- the owners of lots adjacent, by decreasing the value thereof, without being liable to such compensation.
The Circuit Court granted an injunction.
The appellants insist that whilst acting within the powers conferred upon them by the statute, and there being no abuse of that power charged against them, they are not
The appellees contend that the statute (Acts of 1857, p. 61, §§ 59, 60) enlarges their rights over those possessed under the law which obtained at the time the decision in 6 Ind. was made; but if not, we are then asked to review that decision, on the ground that it is in conflict with art. 1, § 21, of the constitution.
We do not believe that the statute referred to is such as to require the appellants, in the case at bar, as presented by the record, to cause to be assessed and tendered a compensation before they proceeded in the contemplated improvement. The case referred to in 6 Ind. appears to be decisive of this. We are not convinced that the decision in that case is not founded on reason and authority.
The judgment is reversed with costs. Cause remanded, &e.