158 Ind. 268 | Ind. | 1902
Appellant, being the owner of a parcel of land within the corporate limits of appellee city, brought this suit to recover damages for the alleged wrongful appropriation of a strip ten feet wide, running diagonally across said parcel, for the construction of a permanent sewer. An answer was filed in general denial, and four affirmative paragraphs, each of which was held good as against appellant’s demurrer. Reply in denial. Trial by the court. Special finding and conclusions of law against appellant. Appellant’s motions to make the special finding of facts more specific and for a new trial were overruled. Errors assigned on all adverse rulings.
The facts set forth in the special finding, so far as material to a decision of the case, are, in substance, these: Appellant in 1870 became and remains the owner of a part of an outlot in the city of New Albany, which it occupies with a part of its gas plant. For more than twenty years prior to its ownership said lot was crossed by a ditch and natural water course, which entered near the southeast corner from Oak street, and meandered in a northwesterly direction to the west line thereof, on Bank street, which ditch and water course, for more than forty years before the appropriation complained of, had been used by the city for drainage, and was the natural conduit for all water flowing over Oak street, and all other streets and alleys of the city, within a radius of one-fourth of a mile of appellant’s property, and was the only means by which the water in said district could flow off and escape, all of which was well known to appellant when it purchased its property. The city, more than twenty years before appellant acquired
The conclusions of law, in effect, are: (1) The city had a right, in the nature of an easement, to enter and construct the sewer along the natural water channel across appellant’s lot; (2) the sewer was constructed, and the cost thereof assessed against the property benefited, in strict accordance
The foregoing facts being all within the scope of the issues, the conclusions of law drawn therefrom present the same questions raised by the demurrers to the answers, and consideration of the demurrers will therefore be omitted. Runner v. Scott, 150 Ind. 441; Zorn Brewing Co. v. Malott, 151 Ind. 371; Gunder v. Titbits, 153 Ind. 591.
We are not called upon to decide moot questions. State, ex rel., v. Boards etc., 153 Ind. 302. The sewer in controversy was constructed, not by virtue of any .claim of the city to an easement entitling it to enter appellant’s premises for that purpose, but by'virtue of the statute enacted for the government of such enterprises. Hence the question presented by the first conclusion of law is moot, and will not be considered.
With respect to the second conclusion of law, it should be noted that municipalities have conferred upon them by the legislature the following general powers: “To fill up or drain any lot or parcel of ground within such city, * * * whenever water has or may become so stagnant or noxious as to be, in the opinion of such council, a nuisance and injurious to the health”. §3541 Burns 1901, clause 2. “For the purpose of drainage of such city, [the common council] may go beyond the city limits, and condemn lands and materials, and exercise full jurisdiction and all the necessary .power therefor.” §3541 Burns 1901, clause 26. “To regulate all bridges, culverts, sewers, * * * and the location thereof.” §3541 Burns 1901, clause 40. “To construct and regulate sewers, drains, and cisterns and provide for the payment of the cost of constructing the same, -x- * * To provide for the estimate for the cost thereof, and the assessment of the same upon the owners of such lots and lands as may be benefited thereby in such equitable proportions as the common council may deem just”. §3541 Burns 1901, clause 43. The special act under which the
It is contended that, since the statute does not provide for the assessment of damages in sewer construction, appellant’s benefits were assessed without taking its damages into consideration, and that it remains without compensation for the ground occupied by the sewer. In this we cannot concur. Whatever may be the rule in other jurisdictions, it is the settled law in this State that when a public improvement, such as usually conveys with it both benefits and damages, is laid upon land, under the right of eminent domain, the compensation of the owner for what is taken is determined, in the absence of a statute forbidding it, by taking into account both the benefits and damages. The rule rests upon the principle that when the State impresses a servitude upon land, which incidentally carries into the remaining property a pecuniary value equal to the value of that taken, the owner has lost nothing, and has received that just compensation guaranteed by the Constitution. McIntire v. State, 5 Blackf. 384; Indiana, etc., R. Co. v. Hunter, 8 Ind. 74; Hagaman v. Moore, 84 Ind. 496; Burk v. Simonson, 104 Ind. 173, 54 Am. Rep. 304; Forsyth v. Wilcox, 143 Ind. 144, 152; Ross v. Davis, 97 Ind. 79, 84.
It may therefore be said that in all public improvement cases, where the statute does not provide otherwise, the proper mode of determining whether the assessment shall be for benefits or damages is to settle the quantum of each, and the net remainder, after subtracting the lesser from the greater, will characterize the true assessment. And in all such cases, where benefits have been assessed against property, it will be conclusively presumed, as against a collateral attack, that the damages, if any, have been estimated and deducted from the aggregate amount of benefits. It follows that the second conclusion of law was correct.
Appellant’s motion to make the special finding more spe
It is affirmed that the corporate name of appellant, as shown by the record, is the Gas Light & Coke Company of New Albany, and that the assessment for the construction of the sewer was made against the New Albany Gas Light & Coke Company, and that no compensation in any form has ever been rendered appellant for the ground occupied by the sewer. There is no merit in this contention. The assessment was against the property, and not against the owner. There is no personal liability following such an assessment. When the city had exhausted the property, it could look no further for an unpaid balance, and it is a complete answer to the contention to say that appellant is here asserting ownership of the property at the time the sewer was constructed and the assessment made.
Many other reasons for a new trial are stated, and a few argued, which chiefly relate to alleged insufficiency in identification of certain records introduced in evidence. We have carefully examined all questions presented, and find that they were all properly ruled.
Judgment affirmed.
Dowling, J., took no part in the decision of this case.