84 Ind. 94 | Ind. | 1882
This action was brought by the appellees against the appellant to recover such sum as had been assessed to him for street improvements made in front of his property. The complaint averred that a majority of all the resident owners of lots or parcels of land, not less than one square, bordering on Indiana Avenue street, in Newcastle, Indiana, filed their petition with the board of trustees of said town, asking that said street be graded and gravelled, and the sidewalks graded, gravelled and paved, between certain points named; that the board granted the prayer of the petition, established the grade, adopted specifications, ordered the work to be done at the expense of the abutting property holders, advertised for bids, and afterwards accepted the bid of the appellees, which was to do the cutting for eighteen cents per yard, the filling for nothing, and to furnish gravel from a certain pit for forty cents per perch, in accordance with the ordinance, profile and specifications; that the contract was reduced to writing, and afterwards the appellees fully completed the work in accord
A demurrer for the want of facts was overruled to the complaint and a like demurrer was sustained to the answer, after which the appellant declining to further plead, final judgment was rendered against him for the amount of the assessment.
These rulings are assigned as error.
The exhibits filed with the complaint, aside from the assessment, which is the foundation of the action, are not a part of the complaint and can not be considered in determining its sufficiency. Moore v. Cline, 61 Ind. 113.
The statute which authorizes these improvements to be made, and the cost of them to be assessed against the owners of abutting property, provides that “the cost of any such improve
It will be observed that the complaint fails to aver the cost of the improvement, the length of the front line of the lots and parcels of land owned by the appellant abutting upon the part of the street so improved, and fails to give the length of the whole improved line. In the absence of these averments it is impossible to determine whether the appellant was liable for the amount assessed. The assessment itself does not supply this omission. It simply gives the names of the persons, the number of feet and the amount .assessed to each jDerson. The aggregate number of feet mentioned is not equivalent to an averment that such number is the length of the whole improved line; nor is the sum of all the assessments equivalent to an averment that the improvement cost such sum. For the want of these averments the complaint was defective, and the demurrer should have been sustained. Overshiner v. Jones, 66 Ind. 452.
Having reached the conclusion that the complaint was insufficient,it would seem unnecessary to determine the sufficiency of the answer; but, as the complaint may be readily amended, the question arising upon the demurrer to the answer will probably again arise, and the question will now be'considered as though the complaint was sufficient.
The substance of the answer was that that portion of Indiana Avenue street sought to be improved, lying between Mill street and the railroad, a distance of forty rods, was but thirty-three feet in width; that said portion of said street had been graded and improved to such width for fifteen years, and that appellant’s property, mentioned in the complaint, lies upon
The second section of the act of April 27th, 1869, provides that “ When, upon petition signed by twelve freeholders, residents of any town, the board of trustees of such town may be of the opinion that public convenience requires the * widening * of a street or alley already opened, the board of trustees shall appoint three commissioners, residents of said town, who shall be disinterested freeholders, to appraise and assess the damages and benefits accruing to the owner of- any land or lot through which any street or alley is proposed to be constructed or altered; ” shall fix a time for them to meet to make the appraisement and shall give them a complete description of the premises to be viewed. Other provisions of the same act provide for an examination of the premises proposed to be appropriated, the assessment of the benefits received and the damages sustained, the report of such assessment to be made to the board of trustees, and authorize them,
Section 8 of the same act provides that whenever a majority of all the resident owners of any lots or parcels of land on any street or alley, not less than one square, to be estimated by numbers, or by measuring the front lines of such lots or parcels of land bordering thereon, shall petition the board of trustees of any town to grade, pave, gravel or macadamize the street, the board of trustees may cause the same to be done, according to specifications to be adopted, by contracts given to the best bidder after advertising to receive sealed proposals therefor. Other provisions of the act provide that the cost of the improvement shall be borne by the abutting land-owners.
These various sections of the statute authorize the board of trustees of a town to widen a street and to grade and gravel it. It is manifest, however, from an examination of them that two distinct proceedings are contemplated, one to widen the street and the other to grade and gravel it. The one seeks the appropriation of property in order to establish a street upon it, and the other merely authorizes the improvement of a street already established. The two proceedings can not be blended. Each procedure is distinct; the objects to be accomplished are different, and the rights of the parties interested can not thus be protected. The owner of the land sought to be appropriated to widen a street is entitled to have his damages assessed and paid before the improvement is. made; while the proceeding to grade and gravel a street contemplates no such appropriation, nor does the statute make any provision for the assessment of damages in such proceeding. The proceeding presupposes the requisite appropriation, and, unless it has been made, the board of trustees have no authority to order such unappropriated strip of land to be graded and gravelled as a street. If the board possessed such power, it would follow that the appellant’s land could be taken without the assessment and payment of damages. This
Pee Cueiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things reversed, at the appellees’ costs, with directions to sustain the demurrer to the complaint, with leave to amend, etc.