143 Ind. 192 | Ind. | 1896
The appellee sued the appellants to enjoin them from widening a certain street in said city, which, it is alleged, the appellants, the city and its marshal, were threatening and about to do by extending the same over appellee’s lot. The issues formed were submitted to and tried by the court without a jury, resulting in a special finding of the facts, on which the court stated conclusions of law favorable to the appellee, upon which he had judgment perpetually enjoining appellants, as prayed for in the complaint.
The errors assigned here, among other things, call in question the conclusions of law. The determination of the question thus presented settles all the other errors assigned.
The material facts found are that on April 11, 1883, one Andros Huncilmah became the owner in fee simple and possessed of the real estate described in plaintiff’s complaint, and so held the same until December 2, 1890, when he sold and conveyed it to the plaintiff, who is now, and has ever since • been, in possession thereof, and that Andros Huncilman’s grantors had title to, and possession of, said property; that Poplar street in' said city, being thirty feet wide, runs east and west along the south side of said real’estate; that on July 21, 1890, the common council of said city, having under consideration a petition to widen said street between upper Eleventh and Thirteenth streets to the width of sixty feet, referred said petition to its committee on streets and alleys; that thereafter such action was taken by said common council as caused the city commissioners to meet at various times, who viewed said property and the adjoining
The conclusions of law, or that which the coiirt stated for conclusions of law, are three in number. The first is nothing but a statement of fact and need not be further noticed.
This conclusion of law proceeds upon the idea that the appellee had become the owner of the lot in question at some period of time after the common council had taken such action as caused the city commissioners to meet, view, report for appropriation, and assess damages, etc., and the making of the nunc pro tunc entry in the record of the common council showing the two-thirds vote in favor of such action. Section 3630, R. S. 1894 (section 3167, R. S. 1881), provides that i£If the common council shall determine, by a two-thirds vote, to submit the said matter to the commissioners, it shall be so ordered, * * but no such matter shall be submitted unless so ordered by a two-thirds vote of such common council. ”
But the fact is not stated in the finding when such action was taken by such common council. The finding shows that the petition to widen the street was pending before the common council on the 21st day of July, 1890,- and that the lot was conveyed to the appellee on December 2, 1890, thereafter. The final report of such commissioners is shown to have been filed on December 15, 1890, on which day it is found the common council approved it, and attempted to appropriate the said south
The finding does show that he purchased after the proceedings were instituted. But it does not show when the two-thirds vote was taken. If it did, we could tell whether appellee was an intervening purchaser, because the finding shows that he purchased the lot December 2, 1890. But if the finding even showed that the two-thirds vote was taken before he purchased the lot, and the nunc pro tunc entry was not made until after his purchase, still the conclusion was wrong because the nunc pro tunc entry was binding on him. He does not complain that he had no notice; there is no finding that he had ño notice. The theory of the complaint and the appellee' is that for want of such a record as the statute requires, the whole proceeding was void. In Leonard v. Broughton, 120 Ind. 536, pages 544-5, quoting from
A very différent question would be presented if the finding showed that the record of the common council disclosed that the vote by which the matter was submitted to the city commissioners was by less than two-
If in fact he became the owner of the lot after the' making of such record, and before its amendment, he knew the fact to be that the vote in favor of such action was either by two-thirds or by less. He must be presumed to know the law that if by less it bound nobody, and if by two-thirds it bound all concerned, and bound him, and that the record might be amended by a nunc pro tunc entry to show that vote. Such an amendment does not contradict that part of the record already made, but is in perfect harmony with it. It brings into the record a fact which all must know, on reading it, must have existed the one way or the other.
The third and last conclusion of law is: “ That the plaintiff is entitled to a perpetual injunction against the defendants enjoining them from entering upon said premises, from appropriating the same, from removing the fences therefrom, and from throwing the same open to be used as a public street or highway. ”,
Whether this conclusion results from the previous one concerning the supposed invalidity of the record of the common council, or from the other facts found is not disclosed. If from the former, it follows from what we have said that it has no support and therefore is error. But it is
“There are many things,” says Judge Elliott in his Gen. Prac., section 319, “which must concur to make a tender good.”
Section 3644, R. S. 1894 (R. S. 1881, section 3181), provides that: “If the commissioners make a report to the common council, as herein provided, no injunction shall lie to restrain proceedings, unless the common council shall proceed to appropriate property upon which damages have been assessed, without first causing the same to be paid or tendered; but all other questions shall be raised and tried by appeal in cases where damages have been assessed, paid or tendered.” By this section it seems clear that payment is treated as independent of tender, and it is thereby assumed that payment may take place without tender. The next section (3645) provides that “It shall be the duty of the city treasurer to pay or tender, or cause to be paid or tendered, the damages assessed to the- person to whom assessed.” Again twice assuming that payment is one thing, and tender another and that the former does not include the latter, the next section (3646) provides that “When the owners of the property are residents of the city the treasurer shall tender damages to them at their places of business, or at their residences or domiciles, as he may elect. When such persons are unknown or not residents of the city, or if the treasurer, upon diligent inquiry, cannot ascertain the residence or place of business of a resident of the city,
It is true that it is found that they have not been tendered. But that is a matter that may be made up of many facts and a legal conclusion. For aught that appears from the finding, the appellee may have been a nonresident and his whereabouts wholly unknown to the city officials and they may have exactly complied with the section quoted, and yet in the opinion of the trial court that might not have constituted a valid and .effectual tender, notwithstanding the statute says it shall. There are many other facts that might have been proven tending to establish a tender, and yet the trial court being of opinion that such facts did not constitute a legal tender, felt justified in stating, as it did, that the damages assessed have not been tendered to the plaintiff.
But it may be asked, is not a failure to make a tender a fact where there has been no kind of an offer to pay whatever? We answer yes. But that is not the nature of the finding. Had the finding been that there had
A finding that a tender of the damages had been made would embrace matter both of law'and fact there can be no doubt.
The acts, facts, and circumstances, claimed as constituting the tender, and the legal conclusion that they were sufficient, would all be embraced in such a finding. Because an offer to pay may be made by such a person, at such a time, at such a place, and in such material, as not to constitute a single element of a legal tender. And yet the trial court might think otherwise, and find as a fact that a tender had been made which would embrace matter of law and fact inseparably commingled.
The same may be true of a finding that no tender had been made, though not necessarily so.
The finding of facts and the conclusions of law must be separately stated; that is, a conclusion of law among the facts found has no force, and a fact found among the conclusions of law has no force. Stalcup v. Dixon, 136 Ind. 9, and authorities there cited. In a special finding of facts or a special verdict, the facts ought to be so stated that it can be seen and known that they are not composed of inseparable matter of fact and law. Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39, at page 52. If the finding of facts contain conclusions of law that can be separated from the facts stated, that does not vitiate the facts found. But if the facts are so stated as to embrace legal conclusions ;that are inseparable from the
Such a rule is necessary to the correct administration of justice. In no other way can the right of a party'to compel a separate trial of the questions of fact and a separate determination of the questions of law he secured. That questions of law and fact should be separately determined is frequently indispensably necessary to their correct determination.
Otherwise confusion and mistake are almost inevitable. So the finding that no tender was made is so framed that it cannot be known by this court that it is not composed partly of fact and the other part an erroneous legal conclusion.
But we need not and do not decide the case upon this point, because, aside from this, there is no finding that the damages assessed had not been paid. As before observed, payment may have been made by such a person, at such a time, at such a place, and in such material as not to contain a single element of tender, and yet, having heen accepted, may constitute an effectual payment. If such payment had been made, then there is no other fact found that would justify the last conclusion of law. Appellee, however, contends that the burden was on the appellants to show the existence of all these facts, and to show that the damages had been paid, and the failure to find them was equivalent to finding against the appellants as to such facts, because it is insisted that the appellee was not required to prove a negative, though he had alleged it in his complaint.
It, however, is settled law that where a negative is essential to the existence of a right, the party claiming the right has the burden of proving such negative.
The judgment is reversed and cause remanded, with instructions to award a new trial, as that, in our opinion, will, from the disclosures of the record, best promote the ends of justice.