142 Ind. 123 | Ind. | 1895
This was an action for injunction, arising under a construction of the city charter of the city of Indianapolis. The assignment of errors presents for consideration the correctness of the court’s rulings in sustaining the several demurrers of appellees to the appellant’s amended complaint.
From the complaint it appears that on the 11th day, of May, 1894, the board of public works of the city of
It is finally claimed that the building of such drain beneath the street as a part of such improvement, and charging the cost to the property-owners by the front foot, as in the case of street improvements, is without warrant of law, and should therefore be enjoined.
By section 74 of the act of March 6, 1891, as amended by the act of February 22, 1893, being the act for the government of cities having a population of more than one hundred thousand, and commonly known as the Indianapolis city charter (Acts 1891, 137; Acts 1893, 56 ;
By sections 83, 88, of the city charter, it is provided that the costs of the construction of sewers shall be assessed in certain cases according to benefits to, and in others according to area of, lands affected.
It is evident, therefore, that under the statute it would not be lawful to assess the costs of a sewer upon the abutting lands and lots by the running front foot.
The principal, question in this case then is whether the drain described in the complaint is a sewer, as contemplated in the statute, or whether it is a part of the street improvement.
By section 69 of the charter (section 3830, R. S. 1891), the hoard of public works is given very full powers over the streets, alleys, and public places of the city, among others, “to design, order, contract for, and execute the improvement or repair of any street, alley or public place within such city. ”
By section 13 of the charter (section 3811, R. S. 1891), it is provided that: “Whenever the hoard of public works shall order the improvement of any street, alley, sidewalk or other public place in such city, in whole or in part, it shall adopt a resolution to that effect, setting forth a description- of the place to be improved, and full details, drawings and specifications for such work.”
What the improvement shall he is not defined by the statute. That is plainly left to the discretion of' the hoard. The only limitation is found in the succeeding section, that the cost shall he estimated according to the whole length of the- street or alley, “ or so much thereof to he improved as is uniform in the extent and kind of the proposed improvement,” per running foot. Pro
The end to be attained, however, namely, the better preparation of the street for public travel, must evidently determine the nature'of the improvement to be made. The mere grading of the street may be deemed sufficient in some instances. Afterwards, it may be thought necessary to raise the center or road bed, and sink gutters along the sides, so as to make a dryer and firmer highway. If the travel increases, graveling may be thought needful. Finally, the board may be of opinion that the street has become so important a thoroughfare that it should be paved with brick or stone. If the ground were low and wet, it would seem that, in connection with any of these improvements, it might be necessary to draw the water from the street by gutters, drains or otherwise, as the board should judge best.
In this case, as stated in plaintiff’s complaint, the board, by resolution, expressed its judgment to the effect that said street should be improved ‘‘ by grading and curbing, and paving the roadway with brick on concrete foundation, and constructing drains or sewers and, appurtenances thereto. ”
The uniformity of the whole work, as well as the particular purpose of the drain under the roadway are likewise shown in the complaint, where it is said: “In the plans, specifications, notices, aiid contract for the said work, there is included, as a part of the same work, and under the same contract, the construction underneath the part of said street so to be improved, for its whole length, a drain or sewer for the pretended purpose of carrying off the. surface water from said street which may fall thereon or flow thereon from neighboring property and cross streets. ”
There can be no doubt that the board had power, under the charter, to make the improvement as provided for in the resolution. Indeed it would appear that the drainage of the street was a necessary part of the improvement. It may seem that it would have been better to have first constructed a sewer along the street, under the sewer provisions of the charter, and then lay the pavement under the provisions for street improvements ; and doubtless this would be true generally. There is nothing shown, however, from which we may discover that the board abused its discretion in this case; and the course pursued, for aught that appears, may have been the wisest under the circumstances.
However that may be, it cannot be said that the draining of water from a street may not be a necessary part of the improvement of such street. And in this case, as we have seen, the board was of opinion that such drainage was necessary.
It has frequently been decided that a drain may be constructed in connection with other street improvements and as a part of the same. Davies v. City of Saginaw, 87 Mich. 439 ; Murphy v. City of Peoria, 119 Ill. 509 ; Cone v. City of Hartford, 28 Conn. 363; Hastings v. Columbus, 42 O. St. 585 ; Bronson v. Borough, 54 Conn. 513 ; 6 Am. and Eng. Ency. of Law, 19. See also, Leeds v. City of Richmond, 102 Ind. 372; 10 Am. and Eng. Ency. of Law, 282.
It is further contended that the board had no author
The words of the statute are, that after the confirmation of the original resolution, the same shall be conclusive on all persons, ‘ ‘ unless within ten days thereafter, two-thirds of all the resident freeholders upon such street or alley remonstrate against such improvement. ”
Counsel for appellant argue that ‘ resident freeholders” here means residents within the city and owning property upon the street; while counsel for appellees contend that the words mean what they seem to say, namely, resident freeholders upon.the street. We think the latter to be the evident meaning and intent of the law.
After the adoption, but before the confirmation of the resolution, provision is made for notice to property owners and others interested in or affected by the work, and for the hearing of remonstrances from them. Sections ■73, 63, of the charter, sections 3844, 3834, R. S. 1894.
After the confirmation of the resolution, ten days additional are allowed during which resident property-owners upon the street may make further remonstrance. We do not think that a second remonstrance was intended for all persons within the city who might own property upon the street. The right to a second remonstrance was rather a favor to those most particularly interested, namely, the resident freeholders upon the street.
The terms resident freeholders within, near to, along or upon a given place, are frequently used in this and
In the statute for the opening and improvement of highways (sections 6712-6750, R. . S. 1891; sections §015-5023, R. S. 1881), similar provision is made in favor of freeholders residing along the line of the proposed improvement.
Other questions discussed by counsel need not, as we think, be considered. The injunction was properly, referred.
The judgment is affirmed.