36 Ind. 522 | Ind. | 1871
Turner sued the city of Terre Haute, alleging in his complaint, that he was the owner of certain real estate fronting on the national road, in that city, on which real estate he had erected a costly warehouse, the front of which was on the line of the north side of said road; that the interior of his warehouse was arranged for use with the level of said road as graded by the government of the United States, and that it had been so used by him since the time of its erection, making large gains and profits thereby, on account of its convenience and easy access, without which he could not have made anything. That in 1867, the city, with
To this complaint the city answered, first, by a general denial, and second; that she was a city regularly organized and incorporated under the general law of the State of Indiana; that the property described in the complaint is located near the centre of the corporate limits, is on a public street, called Main street, which is the same described in the complaint as the national road; that the common council of the said city, during the last summer, considered that it was necessary and that public convenience required that said street, in front of said warehouse and for forty rods east and west thereof along said street, should be graded so as to render the grade of the street and the sidewalks along the same uniform, and by a two-thirds vote ordered that said street be so graded and gravelled; that said order, with the yeas and nays, was duly entered upon their records as a part of their proceedings, at a regular meeting thereof; that pursuant to said order, she caused said work to be done, which is the grievance complained of; that in making said grade, the earth in front of said building was removed to the depth complained of by
A demurrer filed by the plaintiff to the second paragraph of the answer was sustained, and the defendant excepted.
A trial by jury resulted in a verdict for the plaintiff of ■three thousand five hundred and sixty-two dollars and fifty cents.
A motion for a new trial was made and overruled, and proper exception taken. The evidence is all in a bill of exceptions in the record.
Two errors are assigned; first, the sustaining of the demurrer to the second paragraph of the answer; and second, the refusal to grant a new trial.
In support of the ruling of the court on the demurrer to the second paragraph of the answer, it is insisted by counsel for the appellee, that the action of the city council was illegal and void, because the improvement was not- authorized and ordered by an ordinance; while the appellant’s counsel contend that it was legal and proper for the council to authorize and require the work to be done by an order or resolution of the council without any ordinance.
The first case to which our attention has been called on this point is that, of The City of Indianapolis v. Imberry, 7 Ind. 1 175, decided under the statute as it stood in 1859. This language was used in deciding the case: “By the charter the council has jurisdiction over the streets and alleys of the city, with power to provide for their improvement and repair. It has power to order them graded, and gravelled, and paved. It
In The Board of Commissioners of Allen Co. v. Silvers, 22 Ind. 491, which related to the construction of a sewer, and was, under the law then in force, governed by the same rules which governed in improving streets, alleys, etc., it was held that an ordinance was unnecessary, and The City of Indianapolis v. Imberry, supra, was cited as authority.
It may be conceded that changes have been made in the statute relating to the incorporation of cities since these cases were decided, the present law containing some provisions which were not in any of its predecessors; but we have not been referred to any provision, nor been able to find any, which seems to us to require a different rule of construction. The language of sec. 68 in the present statute, “the common council may cause the same to be done, by contracts given to the best bidder, after advertising to receive proposals'therefor,” does not seem to contemplate an ordinance. Still less does the language of sec. 70, under which this improvement was ordered by a two-thirds vote, seem to contemplate any such thing.
Counsel for appellee refer to sec. 56, which is as follows: “ The common council shall have power to make other bylaws and ordinances not inconsistent with the laws of this State and necessary to cariy out the objects of the corporation, and to enforce the observance of all by-laws and ordinances, by enacting such penalties for their violation, not exceeding one hundred dollars for any offence, which may be recovered in an action at law, with costs, as they may deem
The case of The City of Indianapolis v. Miller, 27 Ind. 394, is cited by counsel for appellee as deciding that such improvements can only be made by authority of an ordinance. That case was this: Miller got authority from the city, by a simple resolution, to obstruct the street with building materials, which act was a violation of a previously adopted ordinance of the council. Having been notified to remove the obstruction, and having failed to do so, the city removed it. For this Miller sued the city. The city set up the ordinance in defence, and Miller replied the subsequent order or resolution of the council, claiming that it was an ordinance. This court decided that it was not an ordinance, and did not protect Miller from the charge of violating the ordinance by obstructing the street; that the obstruction was, consequently, a nuisance, and that the city had a right to abate it. This was all that was involved in the case, and all that was decided.
It is true that it was said by the learned judge who delivered the opinion, that the power to obstruct a street was of a legislative character, and could only be exercised by an ordinance, passed under the formalities required by law. Wood v. Mears, 12 Ind. 515, was referred to as if it decided the same thing; but an examination of that case will show that while it decides that a street may be obstructed by the authority of an ordinance, it does not decide that it can be authorized by an ordinance only. But the case in 27 Ind. is not a case in point. It has no relation to the improvement of streets, etc., and is no authority on the point in question.
When a street or sidewalk is graded in a careful manner,
• We must, therefore, hold that the second paragraph of the answer was a good bar to the action, and that the common pleas committed an error in sustaining the demurrer thereto.
The other questions discussed relate to the measure of damages, the admissibility of certain evidence relating thereto, etc., and need not, we suppose, be considered by us.
The judgment is reversed, with costs, and the cause remanded.