63 Ind. App. 475 | Ind. Ct. App. | 1917
In the summer of 1913, appellee constructed, in front of his premises in the town of Carlisle, Sullivan county, a concrete sidewalk, extending along the side of a public street. The sidewalk was somewhat more elevated than the sidewalks to which it joined at each end. In November, 1913, appellant brought this action in the Sullivan Circuit Court. The complaint charges, in substance, that appellee, by constructing his sidewalk elevated as aforesaid, formed at either end a sudden rise or step where it joined the walks in front of the adjoining properties; that the walk as constructed constituted a dangerous obstruction to the sidewalk on the north side of the street, and that persons walking along such sidewalk were in constant peril of stumbling against such sudden rise or step, and thereby suffering injuries, and that appellant would thereby be rendered liable to respond in damages to the persons so injured. The relief sought is that the structure be declared to be a
By regular proceedings the cause was venued to the Greene Circuit Court where it was tried before a special judge. By request of the parties, the court made a special finding of facts, and stated conclusions of law thereon. Judgment was rendered on the conclusions in favor of appellee.0 Five' errors are assigned in this court: the first, third and fourth being, in substance, that the court erred in overruling appellant’s demurrer to appellee’s amended fourth paragraph of answer; the court erred in each conclusion of law and in overruling the motion for a new trial. The second and fifth errors are not properly assigned. The questions sought to be raised by such assignments, however, are properly presented by the third assignment.
The special finding of facts is, in substance, as follows: Appellant is a municipal corporation. Ledgerwood street, extending east and west, is one of the principal streets in the town of Carlisle. Eaton and Harrison streets, one block apart, and an alley midway between them, intersect Ledger-wood street at right angles. The latter street has a gradual fall eastward from Harrison street to the alley. Westward from the alley to Harrison street, the following persons own properties abutting on the north side of Ledgerwood street: Curtner, 19 feet; appellee, 40 feet; Trimble, 12 feet; Squires, 24 feet; National Bank, 32 feet; Ridgeway, 32 feet. On each
The court stated as conclusions of law that the sidewalk
The exceptions to the conclusions of law present the single question whether the sidewalk under the finding is a public nuisance. It is provided by statute that whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property so as essentially to interfere with the free enjoyment thereof is a nuisance and the subject of an action, and that such action may be brought by any person whose piroperty is injuriously affected or whose personal enjoyment is lessened by the nuisance, and that where a proper case is made the nuisance, may be enjoined or abated. §291 et seq. Burns 1914, §289 R. S. 1881.
The cases above cited deal with the erecting and maintaining of buildings, fences, etc., in such a manner as to obstruct or infringe upon the limits of public streets. The structure involved here is an essential, or, at least, a very proper part of a public street, and if it constitutes a public nuisance, such fact consists in the manner of its construction. The complaint proceeds on such a theory.
Note.—Reported in 114 N. E. 705. Public nuisance, nature and elements, 107 Am. St. 199. Private nuisance, nature and elements, 118 Am. St. 869; note 62 Ind. App. 076. See under (2) 29 Cyc 1152, 1153; (3) 28 Cyc 893.