20 Ind. App. 482 | Ind. Ct. App. | 1898
Lead Opinion
Appellant sued appellee for the value of certain gravel, earth and stone alleged to have been taken by appellee from certain streets in said city and converted to appellee’s use. Appellee answered admitting the taking, and pleading facts in justification. A demurrer to this answer was overruled, and a demurrer to the reply sustained. These rulings are assigned as error, and are first discussed by counsel, but as the same questions are presented by the special finding they will be considered in that connection.
So far as necessary to determine the questions raised, the special finding shows that appellee contracted for the improvement of a portion of First street according to certain plans and specifications,, the cost of the improvement to be assessed against abutting real estate, except street and alley intersections; by the specifications, the stone, earth and gravel on the street were to be removed by the contractor to places to be designated by the city officers, except that all the earth claimed by the property owners should be deposited where directed by them. The price paid the contractor for the improvement included the cost of hauling all the material and substance excavated from the street. Before the commencement of the work appellant notified the contractors and board of public works of appellee to haul the materials taken from First street and deposit the same upon certain lots designated, which demand was refused, the city claiming the right to use the gravel upon other streets
' Conceding, without deciding, that the title to the material in question was in appellant, the question presented is, what right or title, as against the city, has an abutting property owner on a public street in a city to surplus earth and gravel and other materials excavated from the street in front of such property for the purpose of improving such street. It is well settled that, the other conditions being the same, the rule of law applicable to the taking of material solely to obtain material to be used elsewhere, and not for the purpose of grading or improving the place from which it is taken, is not applicable to cases where the ma
The ease of Anderson v. Bement, 13 Ind. App. 248, cited by appellant’s counsel, was an action against a road supervisor for wrongfully digging up and carrying away earth and gravel from within the limits of a highway. It was held the action would lie, but it did not appear that the earth and gravel were removed for the purpose of improving the highway at the place from whence they were taken; and the court expressly holds that the question presented in that case is not whether the supervisor had the right to improve one part of the highway by removing earth and gravel therefrom and depositing such material for the improvement of the highway at another point. In Turner v. Rising Sun, etc., Turnpike Co., 71 Ind. 547, cited by appellant’s counsel, it is held that a road supervisor has no right to open a gravel pit in a highway and remove gravel therefrom to be used on other parts of the highway, and that a turnpike company which has appropriated the highway cannot remove earth and gravel without compensation first made, or assessed and tendered. But in that case the earth and gravel were not removed for the purpose of improving the road at that point. In the City of Delphi v. Evans, 36 Ind. 90, 10 Am. Rep. 12, it was held that the common council of the city had no power to remove earth and gravel from one street for the purpose of filling up another street which had been ordered improved, where the removal of the earth and gravel was not for the purpose of improving the street from whence removed.
It will be seen that in each of the above cases complaint was made because of the removal of earth from a place, not itself being improved, but for the purpose of getting earth to make some other improvement, and
In some jurisdictions it is held that a city, in improving a street, may take the natural material found within its limits and use it in making such other improvements as the authorities deem best. Bissell v. Collins, 28 Mich. 277, 15 Am. Rep. 217; Viliski v. City of Minneapolis, 40 Minn. 304, 41 N. W. 1050; Huston v. City of Ft. Atkinson, 56 Wis. 350, 14 N. W. 444; New Haven v. Sargent, 38 Conn. 50, 9 Am. Rep. 360. See 2 Dillon Mun. Corp. (3rd ed.) sec. 687 and notes. But in this State the rule is declared to be that the city can remove the natural soil from one street to another only when the improvement of the two streets is. embraced in one and the same general plan of improvement. In City of Aurora v. Fox, 78 Ind. 1, suit was ■brought for the wrongful carrying away of the soil of the street. It appeared from the complaint that the city, without having adopted any general plan for the improvement of the streets, and without having ad ver
When the abutting owner surrenders such rights as the public easement requires, it may be said that he impliedly agrees to surrender his right to the soil should the municipality need it in repairing or improving that particular way or system of which that is a part and which the law presumes enhances the value of his property. But this is carrying the rule to its limit, and it will not do to s'ay that he impliedly agreed that his property might be taken by the mfinicipality to enhance the value of the property of some one else. The city could not, as of right, take the material and use it for the purposes it did use it. So that, unless it acquired this right in some way at some stage of the proceedings, the right did not exist, and such taking was wrongful and a right of action accrued to the injured party.
But we do not think appellant could rest simply upon his right to the possession of the materials, but
It follows from what we have said that the second paragraph of answer is bad. But the error in overruling the demurrer was not reversible error. The court found as a fact that the gravel as it lay on First
Rehearing
On Petition for Rehearing.
Counsel for appellant strenuously re-argue the questions decided in the principal opinion. Nothing whatever is presented in the petition for a rehearing that was not fully considered by the court on the original hearing. We have again carefully considered all the questions raised by the petition, and there is nothing said in support of the petition calling for special notice. Counsel have presented no reason or authority, and we know of none, why the affirmance of the judgment rendered by the trial court should not stand. We are content with the original opinion, and adhere to the law of the case as therein declared on every material point. A motion is also presented and argued at length to transfer the case to the Supreme Court, on the ground that a constitutional question is involved. No such question was presented, or even suggested, in the briefs on the original hearing. After a case has been argued and decided solely upon the merits, a constitutional question cannot be raised upon a petition for a rehearing for the purpose of having the case transferred to the
The petition for a rehearing and the motion to transfer are overruled.