27 Ind. App. 309 | Ind. Ct. App. | 1901
This canse was commenced in the Hamilton Circuit Court and venued to the Tipton Circuit Court. It was an action to enforce an assessment for street improvements. The court made a special finding of facts and stated its conclusions of law thereon. Appellant excepted to the conclusions of law, and this is the only question discussed.
An abstract of the special findings shows the following facts: That the assessment sought to be enforced was for an improvement of a part of Eighth street in the city of Noblesville; that said street ivas improved under a resolution of the common council, which was unanimously adopted, which resolution specified the nature and character of the improvement; that the city engineer, under the order of the common council, prepared a profile, plans, and specifications for the improvement, which were, upon presentation, adopted; that the common council thereupon appointed an improvement committee of three of its members; that notice was given according to law; that a committee was appointed to hear objections; that said committee reported that no objections that were well taken had been filed; that the city engineer was ordered to give notice to contractors; that such notice was given and published; that subsequently the common council and the improvement committee met to receive and open sealed bids for the improvement; that the contract for the improvement was awarded to appellant; that appellant filed an acceptable bond, conditioned to do the work according to the plans, etc.; that appellant thereupon entered into a written contract whereby he agreed to- do the work as provided by the plans, specifications, etc.; that appellant completed said improvement; that the improvement committee reported to the common council that the work had been completed, and thereupon the city civil engineer was instructed to make the final report and estimate, which he did; that notice was duly given of the time and place when and
Upon these facts the court concluded that the law was with the appellee, and so stated. It is plainly disclosed by the record that appellee successfully defended upon two grounds: (1) That the street was not completed in substantial conformance to the plans and specifications and the terms of the contract, and (2) that as to the abutting property owners, a rebate “On their respective assessments was allowed, and hence the abutting property was not assessed ratably. As to a rebate of $1.14 per lineal foot allowed Evans and Hinkle on account of the improvements made by them to the street in front of their property, and which improvements were made in substantial conformity to the plans and specifications, we think is fully settled by statute. The statute provides that when a property owner, before the letting of the contract shall have made any improvement in
We will next consider the question raised and relied upon by appellee growing out of the unfinished condition of the street on the west side opposite appellee’s property. It is shown by the special findings that the Lake Erie and Western Railroad Company owned a narrow strip of ground on the west side of the street nearly four hundred feet long. This strip of ground at the south end is five feet wide, and tapers to the north end of the last described strip, where it is three feet wide, running thence north for 192 feet to a point where it is only one foot wide. The west side of the street is partly occupied by railroad tracks, said tracks occupying a part of the strips of ground described, and being within five feet of the sidewalk. It is also found that the common council directed that a certain portion of the west side of the street west of the main track occupied by side-tracks be left unimproved, on account of a compromise agreement growing out of an injunction suit in the federal court, and the order of such court entered therein; and that by reason of such facts the railroad company was allowed a rebate of $1.14 per lineal foot. It is also found that a part of the street was occupied by the railroad company as a depot and station grounds.
Do these facts show such a departure from the plans and specifications as to vitiate any part of the assessment made against appellee’s property ? If so, it would in the same manner vitiate a proportionate per cent, of all other assessments. We do not think it does, when all the facts are con
' In his work on Eoads and Streets, Judge Elliott lays down the rule that a deviation from the plans or contract will not vitiate the proceedings unless it does the landowner some material harm. Elliott on Eoads and St., §382. In this instance we are unable to see how any material harm resulted to appellee.
But there is another principle involved in this appeal, which is firmly settled in this State. It is found that the contractor completed the improvement; that it was so reported to the city council; that the council accepted the work as completed; that a final estimate was ordered, made and approved, and that notice of the time and place was given, when and where property owners affected could appear and make objections. In such case, the property owner is bound by the assessments even though the work was not done in substantial compliance with the ordinance and contract, except where fraud is shown. In the case of Bozarth v. McGillicuddy, 19 Ind. App. 26, it was held that when the work under such contract has been accepted by those authorized to pass upon it, no defense but that of fraud can be interposed by a property owner in a suit to enforce the lien of assessment. In the case of Green v. Shanklin, 24 Ind.
Appellant further insists that as appellee stood by during the progress of the improvement and saw and knew what was being done, etc., he is estopped from now asseiting this defense. As the judgment must be reversed for the reasons given and final judgment rendered in conformity with the mandate which follows, it is proper to leave that question undecided.
The judgment is reversed, and the court below is directed to restate its conclusions of law and render judgment for appellant for the unpaid balance of appellee’s assessment, together with six per cent, interest from the date of the confirmation of the assessment, and $86 for appellant’s attorney fees.