43 Ind. App. 467 | Ind. Ct. App. | 1909
This ivas an action instituted by appellee in the ITenry Circuit Court for the recovery of the cost of paving that portion of a street lying between the ends of the ties of appellant’s track. The complaint is in one paragraph, and proceeds upon the theory that appellant is liable for the cost of said improvement by virtue of the franchise granted to appellant by the board of trustees of said town on November 13, 1902, whereby appellant agreed that, in ease any street occupied by said appellant was improved by graveling or paving, it would pay the cost of such improvement of that portion of such street lying between the ends of the ties of its track.
The complaint sets out in full the ordinance granting the franchise. It also shows that the street was ordered to be and was improved by paving, under the statutes of the State enacted for such purposes, that a demand was made on appellant to pay the same, and it refused to do so. A demurrer was filed to this complaint, which was overruled, and appellant answered by setting up the ordinance set out in the complaint, and then averring that on April 8, 1903, appellee, through its board of trustees, amended said ordinance by another which eliminated the contract to improve the streets, contained in the first ordinance, and which formed the basis of appellee’s suit. Said answer also shows that, subsequently to the enactment of said original ordinance, appellant laid and temporarily constructed its tracks for the operation of a system of street-railway in the street afterwards improved; that said amended ordinance was passed prior to the commencement of such improvement; that said amended ordinance repealed and rendered ineffective said original ordinance, and, at the time said street was so improved, there was no agreement on the part of appellant to pay for any portion thereof. To this answer appellee filed a demurrer which was sustained, and appellant refusing to plead further, judgment was rendered in
The only error assigned and discussed is the sustaining of appellee’s demurrer to appellant’s answer.
The record shows that said original ordinance consisted of fourteen sections. It provided numerous restrictions upon the railway, as well as granting it a number of powers and rights. The amendatory ordinance is in nineteen sections, aiid reincorporates within its provisions the greater portion of the provisions of the original ordinance, and adds other restrictions and rights. The title of the amendatory ordinance is as follows:
"An ordinance amending sections of an ordinance entitled ‘An ordinance granting the Indianapolis & Eastern Railway Company the right to construct, maintain and operate a street-railway upon the streets of the town of New Castle, Indiana,’ passed and adopted by the board of trustees of the town of New Castle, Indiana, on November 13, 1902.”
The first section of said ordinance is as follows:
‘ ‘ Section 1. Be it ordained by the board of trustees of the town of New Castle, ITenry county, Indiana, that an ordinance entitled ‘An ordinance granting the Indianapolis & Eastern Railway Company the right to construct, maintain and operate a street-railway upon the streets of the town of New Castle, Indiana,’ passed and adopted by said board of trustees on November 13, 1902, be and the same is hereby amended to read as follows, to wit: An ordinance authorizing the construction, maintenance and operation of a street- and interurban railway in the town of New Castle, Henry county, Indiana. Section 1. Be it ordained by the board of trastees of the town of New Castle, Henry county, Indiana, that consent, permission and authority be and are hereby given and granted unto .Indianapolis & Eastern Railway Company, its successors and assigns, to locate, survey, construct, own, maintain and operate a single or double track standard gauge street- and interurban railway with the necessary side-tracks, switches, turnouts, and turntables, etc. ’ ’
Then follows the language of the original section.
There is no question of fraud or overreaching in this case, and everything that was done appears to have been in good faith, if not with good judgment. It therefore appears that there was a valid consideration for the second contract, and that this contract was intended to and did supplant and extinguish the old one. This being true, there exists no agreement on the part of the railway company to pave between its tracks, and it cannot be held for the payment therefor.
Judgment reversed.