41 Ind. App. 278 | Ind. Ct. App. | 1908
This is a suit brought by appellee against appellants. The complaint is in two paragraphs. The first seeks to enjoin appellants, from constructing a sewer through appellee’s land. A restraining order was issued thereon by the court, and appellants constructed the sewer in defiance of the court’s order. Appellee then filéd a second paragraph, seeking to enjoin appellants from using the sewer and permitting water and sewage to run through the same over appellee’s land. The grounds of complaint in each paragraph are (1) that the construction of the sewer was illegal, in that the board of town trustees had not taken the preliminary steps as prescribed by law; (2) that the sewer, as constructed, was a nuisance, destroying the comfort and endangering the health of the tenants on appellee’s land and persons in the vicinity, and depreciating the value of appellee’s property. A trial was had,- and on request special findings and conclusions of law made, upon which a decree was entered for appellee.
Numerous errors are assigned, but, in our opinion, the cause should be determined upon the question whether the board of town trustees, in its preliminary proceedings, omitted such necessary steps as to render the whole proceedings illegal and void. This question is presented upon the pleadings, the special findings, conclusions of law and the evidence. It is unnecessary to take them up in detail, as presented. The sewer complained of was attempted to be constructed under the act of 1901 (Acts 1901, p. 401, §4443a et seq. Burns 1901). The record shows conclusively that on July 21, 1903, upon petition, the board of trustees, by unanimous vote, passed a resolution for the construction of main drain sewers in the middle of Main and Pearl streets, beginning at Harrison street and emptying in Turkey creek, and appointed Henry Cook, as civil engineer, to make survey and report the same to the board; that said Cook accepted . said employment, made a survey, and filed with the board a plat and profile showing the lines of said sewers;
“To. WHOM IT MAT CONCERN.
Notice is hereby given that the board of trustees of the incorporated town of Syracuse, Kosciusko county, Indiana, has declared its desire to construct a sewer beginning at the center of Harrison street, running thence in the middle of Main street, and terminating in Turkey creek ditch, at a point where said ditch crosses the lot line on the north side of Main street; also a sewer beginning at the middle of Harrison street, running thence in the middle of Pearl street. A competent engineer has been appointed to survey the same, and has filed his report as required by law, and the board has fixed September 14, 1903, at 7 o’clock p. m., for the hearing of said report and the final determination of said board thereon.”
No one appeared in response to said notice at the time fixed. Said board then, by resolution, declared that said sewers would be of public utility, and ordered advertisements for bids. The board did not determine what part of the cost should be paid out of the general fund of the town. The bids were received and contract let to appellant Liebole, and he proceeded to the construction thereof. The sewers were completed and accepted by the board, and assessments of benefits and damages made. Appellee’s lot was assessed for benefits in the sum of $5, and damages to said lot were assessed at $25. Appellee protested, and resisted, both in person and in the courts, the efforts of the board and eon-
The act governing this proceeding (Acts 1901, p. 401, §4443a et seq. Burns 1901) authorizes incorporated towns to construct sewers for sanitary or drainage purposes, and to charge the expense thereof to the properties benefited thereby. Section two (§4443b, supra) provides that when a town desires to construct such sewers the board of trustees shall by resolution declare its desire so to do at a regular meeting of such board, which resolution shall give a general description of the work, with the route and termini thereof, and shall appoint a competent civil engineer to survey the same. These provisions were substantially complied with in the case at bar. Section three (§4443c, supra) is as follows: “The said engineer shall make a careful survey of the proposed sewer, and report in writing to the board of trustees of such town, the following facts: First. An accurate description of the beginning, route, terminus and fall of the proposed sewer or sewers, including the outlet of the same. Second. Detailed specifications, plans and profile for the proposed sewer. Third. The kind of material to be used and the size of the sewer proposed. Fourth. An estimate of the cost of the construction of the same. Fifth. A description of the district which will be benefited by the construction of the proposed sewer, so specifically that all property owners to be affected thereby may be informed whether or not any property owned by them will be affected by the proposed improvement. Sixth. A description of any lands which will probably be damaged by the proposed improvement, name of the owner of such lands, together with the probable amount of the damage.” Section four (§4443d, supra) provides that, upon the filing of this report, notice
In the ease just quoted from, a sewer was sought to be constructed under an act of the General Assembly which provided that at the preliminary hearing the board should fix the boundáries of the drainage district, determine that the estimated cost would not exceed the estimated benefits, and these matters were to be ascertained from a report filed by the civil engineer and the evidence produced at the hearing by parties interested: This the board failed to do. The sewer was constructed, and on- suit to foreclose an assessment lien to pay for the same the Supreme Court held that' this failure was jurisdictional and subsequent action in that behalf was void, saying in the course of the opinion: ‘! Since the lawmaking power has vested the authority to determine benefits and damages in the local authorities, and not in the courts, how can we know, or how could a court try the question, whether the supposed advantage was really a net gain to the property owners? Questions as to the capacity of the sewer, if connected with another sewerage system above, of water backing into basements in the drainage area in times of flood, and as to the obstruction of the sewer by silt flowing into it from the upper lands, are among the- questions which obtrude themselves as matters which the courts are not authorized to try in this kind of a case, but which must necessarily be considered in determining whether the benefits to the district will equal the cost of construction.” It is true, the statute now before us is somewhat different i-n its provisions, but in effect it is the same. The provisions of the statute involved clearly contemplate that the matters required to be reported by section three shall be considered in determining upon the public utility, and whether its cost would be less than the benefits, so as to be a net gain to the property owner, if not, whether the general public should be so benefited as to warrant an expenditure out of the general fund to make up the deficiency be
We have not considered the other ground • asserted by appellee for relief, as, in our view of the case, it is unnecessary.
Judgment affirmed.