161 Ind. 495 | Ind. | 1903
— This action was commenced and prosecuted by appellants in the lower court to enjoin the city of Lawrenceburg and its eodefendants from carrying into force and effect an ordinance or order of the common council vacating a part of a public street of said city. A demurrer for want of facts was sustained to the complaint, and judgment was rendered against appellants on demurrer, and from this judgment they appeal. The validity of an ordinance being in question the appeal is properly in this court.
The facts disclosed by the complaint briefly stated are as follows: The city of Lawrenceburg, in Dearborn
The proceedings to vacate were had under the provisions of an act of the legislature passed at the special session of 1875 (Acts s. s. 1875, p. 17). Sections 18 and 21 of the original act were amended in 1885, and §19 was amended in 1895. These three sections, as amended, are embraced in §§3647, 3648, 3650 Burns 1901. Section 3648 as amended provides, as it did originally, that “in case any property owner immediately upon the line of said street * * * or part thereof, sought to be vacated, who is directly interested therein shall object to such vacation, the city' commissioners shall report such fact to the common council.” Section 3649 Burns 1901, being §20 of the original act, provides that the city commissioners shall report in writing to the common council within the time therein prescribed, stating in their report inter alia “the names of property owners or persons who may object to the vacation of such street, * * * and the nature of their interest therein.” Section 3650, as amended, provides that the common council, within the time therein prescribed, shall either refer the report back to the commissioners or accept or reject it. It is expressly declared in this section that “the common council shall have no power to order such vacation when objected to by property owners adjacent thereto.” Under this section as it existed previous to the amendment thereof in 1885 it was provided “that the common council shall have no power to order such vacation when objected to by property owners adjacent thereto, or by those having a direct or substantial interest therein.” This latter clause, viz., “by those having a direct or substantial interest therein,” was eliminated from the section by the amendatory act of 1885.
It is not essential that we determine in this appeal whether a property owner immediately upon the line of the street, and who has a direct interest therein, may, by objecting to a proposed vacation, absolutely defeat it, for that is not the question herein involved.
By the amendment of §21 in 1885, §3650, supra, the legislature has declared that the common council shall have no power to order the proposed vacation over the objections of an owner or owners of property adjacent thereto. The mere fact that the objector is the owner of such property alone enables him to defeat the proposed vacation without assigning or establishing any other reasons or grounds for his objections. By the averment of appellants’ complaint, and also by the map and the report of the city commissioners filed in the proceedings to vacate, all of which are embodied in and made a part of the complaint herein, it is fully disclosed that appellants are the owners of property adjacent to the strip or part of High street
The lots of appellants, as shown, abut upon the side of High street immediately opposite to the part thereof vacated. Counsel for appellees insist that appellants can not, under the circumstances, be considered as adjacent owners to that part of the street vacated, for the reason that the strip in question did not embrace the entire width of the street. Because a portion thereof intervened between appellants’ property line and the part vacated, it is contended that they were not adjacent owners within the meaning of the statute, and therefore, were not competent objectors. There certainly is no force or merit in this view of the case. To say the least appellants had the right to demand that the street in controversy be maintained to its full width in front of their property, and the mere fact that only a part on the side opposite to their property line was proposed to be vacated did not render them incompetent to object and thereby deprive the council of all power
The court erred in sustaining the demurrer to the complaint, and the judgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer, and for further proceedings not inconsistent with this Opinion.