24 Ind. App. 547 | Ind. Ct. App. | 1900
This is an action by appellee against appellant to enforce a statutory lien upon a portion of appellant’s right of way in the city of Alexandria for a street improvement assessment. A demurrer to the complaint was overruled, an answer in denial, and a finding and judgment for appellee. Appellant’s motion for a new trial was overruled, and these adverse rulings are assigned as errors. Several objections are urged to the complaint, but the one to which the principal argument is addressed is that the
The final estimate of the cost of the improvement was made by the engineer, and the assessments made against the abutting property were approved and confirmed by the common council. In the final estimate of the engineer is this statement: “The following is the final estimate of the cost and expense, at the contract price, of the improvement by Patrick T. O’Brien, of Church street, of said city from the west line of Harrison street to the O. C. C. & St. L. Ry. Co.’s right of way.” The final estimate shows the total cost of the improvement, its length, and the average cost per running front foot. Appended to the final estimate is a list of property owners, the number of front feet owned by each, the amount due on each lot or parcel of land, and what purports to be “a full description, together with the owner’s name, of each lot or parcel of ground bordering on said part of said street so improved.” That part of the assessment roll which attempts to describe the real estate owned by appellant, and by which it is sought to create a liability against it, is as follows:
We do not deem it necessary to refer to the complaint at any length, as the argument is largely directed to the alleged insufficiency of the description of the property, as shown by the assessment roll.
Section 4293 Burns 1894, provides that, when any such street improvement has been completed, a final estimate shall be made by the engineer, and, among other things, such engineer is required to report “the full description, together with the owner’s name of each lot or parcel of ground bordering on said street so improved”; and the “amount of such cost for improvement due upon each lot or parcel of ground,” etc. The amount so found and reported by the engineer, if approved by the common council (§4294 Burns 1894), is assessed against each lot or parcel of ground, and such assessment creates a lien and is the basis of an action to enforce such lien. Being the basis of the action, a copy of such assessment must be filed with the complaint as an exhibit. Van Sickle v. Belknap, 129 Ind. 558; City of Terre Haute v. Mack, 139 Ind. 99; Sloan v. Faurot, 11 Ind. App. 689. The assessment, to constitute such lien, must describe the real estate with sufficient accuracy so that it may be definitely located. In this case the complaint describes by metes and bounds a parcel of ground referred to as the “right of way” of the Cleveland, Cincin
This court, in the case of Lake Erie, etc., R. Co. v. Walters, 9 Ind. App. 684, had the exact question here before it, and held that the description of the property was so indefinite and uncertain that no lien was created. There the assessment roll, as made by the engineer, showed the following:
It was held that such description was so defective that the complaint could not be upheld on demurrer.
In the decision of that case the court said: “The assessment should not be held void or invalid if it sufficiently identifies the land so that it might be found and located by a competent surveyor. We are unable, however, to see how it could be located, or its correct description arrived at, from the description given in the assessment, by any means known to the science of surveying. ‘Tract of land, north side, between Eront street and O. & M. R. R.,’ does not describe any tract of land, nor does it furnish any data from which its true description might be ascertained. It does not fix any starting point; it gives no metes and bounds, and furnishes no means of identification. The maxim, ‘Cerium est quod cerium reddi potest,’ is not applicable here, for the reason that there is no means of making certain that which is so uncertain and indefinite. The rule only applies where there is some means, either by computation, measurement, or in such case as this the science of surveying, that what is uncertain may be made certain. It has been held that the property assessed must be so described that a person acquainted with surveying could find and identify it. Yeakel v. City of Lafayette, 48 Ind. 116; Peru, etc., Co. v. Hanna, 68 Ind. 562. It is evident, from the description of the property in the case at bar, that even an
Judgment reversed, with instructions to the count below to sustain appellant’s motion for a new trial, and to sustain its demurrer to the complaint.