182 Ind. 260 | Ind. | 1914
Appellee filed his petition in the circuit court of Laporte County, for the vacation of a section of street in the village of Hudson, Laporte County, Indiana, naming himself and the Chicago, Lake Shore and South Bend Eailway Company as the owners of lots adjoining said street, and as the only persons interested therein, and affected thereby, and also alleging that said village of Hudson had theretofore been laid out and platted, and the plat thereof recorded as provided by law, but that the same has never been, and is not now incorporated. The civil township of Hudson demurred to the petition, denying jurisdiction in the court of the subject-matter, which demurrer was overruled. Emery as trustee of the civil township answered, alleging in substance, that the village of Hudson was platted in 1837, and the street sought to be vacated is a street shown by said plat; that a small hotel, and fifteen or twenty houses are located in said village; that the village was never incorporated and never had any form of municipal government, and its streets and alleys, ever since said platting, have been repaired and maintained by the officers of the civil township of Hudson; that said village does not adjoin any incorporated city or town, and that the nearest incorporated city or town is the city of Laporte, which is fourteen miles distant, and that by reason of these facts the court had no jurisdiction of the subject-matter. Appel
The errors assigned are, that the court had no jurisdiction of the subject-matter of the action, and in the rulings on the demurrers to the petition, and answer. The first assigned error is sufficient to raise the question here presented.
The title of the act under which this proceeding was instituted (Acts 1907 p. 617, §§8908-8920 Burns 1914), reads as follows: “An act concerning the vacation of plats of lands or any part thereof and for the disannexation of territory from the corporate limits of cities and towns.” The particular section in question reads: “Whenever any person or persons interested therein, or the owner or owners of any lot or lots or part or parts of lots in any incorporated city or town or which is not a corporation in active operation shall desire to vacate any street, alley or public ground therein or any part thereof adjoining such lot or lots or part or parts thereof, such person or persons shall file with the circuit court in the county in which such lands, or some part thereof, are situate, his, their or its petition setting forth the particular circumstances of the case, giving a distinct description of the property sought to he vacated”, etc.
The question here presented is, whether streets in a village which has never been incorporated, come within the purview of this act. The language of the act, “incorporated city or town or which is not a corporation in active operation,” limits the operation of the act to those falling within its express terms, and clearly excludes those not so classified, and being a statutory right, one who seeks to make avail thereof, must show himself as falling within the designated class. It is the contention of appellant, first, that the language, “which is not a corporation in active operation,” necessarily implies that it had once been incorporated, and had ceased to operate its corporate fune
The legislative power is plenary over the subject of the highways of the State, and it may confer such jurisdiction where it sees fit, to lay out or vacate them, even to the extent of granting concurrent jurisdiction. Prior to the enactment before us, jurisdiction to lay out or vacate public highways not within incorporated cities or towns, was in the exclusive control of boards of county commissioners, and in case of cities and towns, the jurisdiction was exclusively within those corporations. Hence it is urged that there was no necessity for the act under the construction put on it by the court below. And for the reason that if the village had once been incorporated it did not cease to be a corporation de jure, and liable as such, even though it had ceased to exercise its corporate functions, and hence had no officers to act upon the subject of vacation of streets, as it would have had if in the exercise of its franchise, or in the language of the act “a corporation not in .active operation”. In other words, if it had been incorporated, and was exercising its functions, it had jurisdiction over its streets and public places, and the act was unnecessary, while if it had been incorporated, and was “not in active operation,” that is, not exercising its corporate functions, there could be no machinery for vaca
Viewing the matter from another angle, as incorporated cities and towns prior to the enactment had exclusive control over streets, alleys and public places within their limits, it is manifest that this act confers concurrent jurisdiction with cities and towns on the circuit courts, and that this is within the power of the legislature. Upon the same analogy, it may vest concurrent jurisdiction in circuit courts with
The remaining question is, as to the constitutionality of the section of the act here involved, as to whether the subject of vacation of streets, alleys and public grounds is within the title. The plat of a street or highway is as much a part of a plat, as the platting or delineation of lots or subdivisions of the adjoining land. Supposing it to be contemplated to vacate a plat of ground, or the lots composing it, could it be doubted that there is, or would be as much reason in vacating streets, alleys or public places in the plat, as the vacation and obliteration of lot lines ? Platting itself signifies the subdivision of the land into streets, alleys and public places, and as related to the lots or
We do not think the section is open to the constitutional objection urged, and the judgment is affirmed.
Note. — Reported In 106 N. E. 359. On the discontinuance or vacation of a highway by the acts of public authorities, see 26 L. R. A. 821. As to the construction of constitutional provisions relative to the title of statutes, see 1 Ann. Cas. 584. As to vacation of streets, its effects on and the remedies of parties prejudiced, see 46 Am. St. 493. See, also, under (1) 36 Cyc. 1160; (2) 37 Cyc. 175, 51; (3) 36 Cyc. 1028.