17 Ind. 267 | Ind. | 1861
Complaint by Maay and Turner against the appellees. Demurrer to the complaint sustained, and judgment for the defendants. The substance of the complaint is, that the common council of the city, in the year 1854, caused the grade of certain streets in the city to be established, and the side walks thereof to be graded and graveled. That the plaintiffs are each the owner of certain lots adjoining the-streets thus graded, which have been improved with reference to such grade; the buildings thereon having been erected, fences put up, side walks graded and graveled, and shade trees planted, with direct reference to the grade thus established. That afterward, in 1859, the common council, without the consent of the plaintiffs, and without any necessity therefor, and without first having the damages assessed and tendered to the plaintiffs, changed the grade, so as to require a cut of two feet, interfering materially with the use and enjoyment of the plaintiffs’ property; and which, if carried out, will compel them to alter and reconstruct their improvements, made as aforesaid, destroy their shade trees, and otherwise put them to great trouble and expense. That the common council have contracted with the defendant, Tetoomb, to grade and gravel the streets in accordance with the grade as thus changed, who has entered upon the work, and has hauled away earth and gravel from the street in front of the lots of the plaintiffs, respectively. Prayer, that the defendants be enjoined, and for other relief.
The questions arising upon the complaint may be resolved into two, and stated as follows: 1. Oan the common council, after they have once established the grade of a street,
By the act of March 9, 1857, it is provided that “the common council shall have exclusive power over the streets, highways, alleys and bridges within such city,-and to lay out, survey and open new streets and alleys, and straighten, widen, and otherwise -alter those already laid out, and to make repairs thereto, and to construct and establish side walks, crossings, drains 'and sewers.” Acts 1857, § 59, p. 61.
This section, as was said in Wood v. Mears, 12 Ind. 515, confers upon the common council plenary power over the streets and alleys of a city. No provision is made by law for the assessment or recovery of damages sustained by persons in consequence of a change of the grade of a street, or other alteration made therein, unless his property is to be appropriated. Provision is made, however, for assessing and paying damages “to the-owner of any land or lot through which any street is proposed to be constructed or altered, or any building thereon appropriated.”
The statute above quoted, confers upon the common council ample power to change the grade of a street, as well as to make any other alteration- therein. When the grade has been once established, it is no more fixed and unalterable, than is the establishment of the street in any other respect. The power to fix the grade of streets is, undoubtedly, a continuing power, to be exercised from time to time, as the wants and necessities of the city may demand. Goszler v. Corporation of Georgetown, 6 Wheat. 593; Smith v. The Corporation of Washington, 20 Howard’s (U. S.) R. 135; O’Connor v. Pittsburgh, 18 Penn. R. 187.
We come to the second question. It may be remarked that the allegation in the complaint, that the change in the grade was made “without any necessity therefor,” does not change the case as otherwise made. The common council must be the judges of the necessity of the change. It is not alleged that they acted illegally, wantonly, or maliciously; or
