13 Ind. App. 359 | Ind. Ct. App. | 1895
This is an action by the appellee against the appellants to enforce the collection of a sewer assessment made by the board of public works of the city of Indianapolis. The court overruled, a demurrer to the complaint and the appellants answered and filed cross-complaints, to which demurrers were sustained, and a final judgment and decree was rendered foreclosing the lien. The principal question presented by the ruling upon the demurrers will more readily appear from a statement of so much of the facts as is necessary for that purpose, as they appear in the pleadings.
The appellant Henry Coburn who was the principal defendant below, his wife, Mary Coburn, being made a co-defendant, merely to answer to her interest, is the owner of a lot in the city of Indianapolis, which is located on what is known as “ square 38.” This lot is fifty feet wide and 202-J- feet deep, running north and south, and having its frontage north on East New York street, between Delaware and Alabama, and abutting on the rear or south end on a narrow street or alley called Miami street, or alley. There are lots both to the east and west of the appellant’s lot between Delaware and Alabama streets. There is a general or public sewer along Alabama street which was constructed in 1893, as also a local sewer in Miami street to connect
The point sought to be raised and presented is whether under these facts the city had a right to make the assessment to enforce which this action was brought. The contention of the learned counsel for appellants is that the city government having once exercised the power conferred upon it to order a local sewer, by which the appellant’s lot would be drained into the public sewer, that power then became exhausted and could not be again exercised by ordering the construction of another local sewer on the opposite end of such lot. It is also contended by appellants’ counsel that the averment that the present sewer was not adapted to drain or benefit the appellants’ lot tendered an issue of fact which should have been submitted for trial.
We thixxk the foregoing provisions grant to the city of. Indianapolis and its board of public works the right to provide for the drainage of its streets axxd lots, and to construct sewers, such as the one in controversy, and to assess the adjoining or abutting lots for the pux’pose of defraying the cost of construction. Aside from the authority thus expx’essly delegated, however, the power to coxxstruct such sewers is incidental to the power axxd authority usually and coxnmonly exercised by a municipal corporation. Leeds v. City of Richmond, 102 Ind. 372; Elliott R. and S. 362, axxd authorities cited. By
The power to order the construction of a sewer for drainage rests upon the same ground as that of ordinary street improvements.. The necessity for a sewer, like the necessity for a street improvement, must be determined by the municipal officers, and comes within their discretion. Unless it can be said that this discretion has been abused, the courts cannot interfere. There is nothing in the pleadings before us that indicates an abuse of such discretion. Indeed, the cross-complaint concedes the necessity for the improvement, but avers that it will benefit only the lots on the side of the street opposite the lot of the appellants, and that it will not benefit their lot. But assessments for local sewers are not placed upon the basis of special benefits, like public sewers, the statute providing that the assessment shall be according to the frontage as in street improvements. Acts 1893, page 332.
For these reasons, it is our opinion that the court did not err in its rulings upon the demurrers to the-complaint and answer and cross-complaint.
We also think the appellant Mary Coburn was a proper defendant to answer to her interest, and that her
It is proper to say that we think a great hardship has been imposed upon the appellants in this instance by what practically amounts to a double assessment upon the whole area of their property. The remedy for such hardships, however, must be sought in the Legislature and not in the courts.
Judgment affirmed.