57 Ind. 192 | Ind. | 1877
In this action, the appellant, as plaintiff, sued the appellees, as defendants, in the court below. The appellees demurred to appellant’s complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court below, and to this decision the appellant excepted. And, appellant refusing to plead further, judgment was rendered by the court below, on the demurrer, in favor of the appellees and against the appellant.
The sustaining of the demurrer to the complaint by the court below is the only alleged error assigned by the appellant, in this court. This alleged error presents for our consideration this one question: Are the facts stated in the complaint sufficient to constitute a cause of action, in favor of the appellant and against the appellees ? As necessaiy to a proper understanding of the question thus presented, we give a summary of the facts stated in the complaint.
The appellant alleged, in substance, that it was an incorporated town under the laws of this State; that, since its incorporation, it had been and was the appellant’s duty to keep the- public streets and alleys of said town in a safe, good and convenient condition to be used and travelled over and along by the public; that there were, within the corporate limits of said town, among others, two streets known and designated as Main and Main-Cross streets, which were -laid out and established by said town, as public streets thereof, more than twenty years ago, and had been, during all that time, used by said town and the public generally as public streets and thoroughfares of said town; that on or about the 1st day of September, 1874, the appellees, being the owners of certain pieces of real estate situated along and near said two streets, and within the corporate limits of said town, for the purpose of. draining the cellars under the buildings on said pieces of real estate so owned by them, without the consent of
It does not appear, from appellant’s complaint, under' what law the appellant was incorporated; but it will be presumed, nothing appearing to the contrary, that the
By the first section of an act to enable incorporated towns to lay out, open, grade, and improve streets and alleys, etc., approved April 27th, 1869, it is provided, among other things, “ That the board of trustees of incorporated towns of this State shall have exclusive power over the streets, alleys, highways and bridges, within the corporate limits of such town,” etc. 1 R. S. 1876, p. 890. And by the 9th clause of section 22 of the general law of this State’ providing for the incorporation of towns, etc., approved June 11th, 1852, it is provided, that the board of trustees shall have power “ To lay out, open, grade and otherwise improve the streets, alleys, sewers, sidewalks and crossings, and keep them in repair, and to vacate the same.” 1 R. S. 1876, p. 879.
Where such an exclusive and plenary power is conferred by law on an incorporated town, over the streets and alleys within its corporate limits, the correlative duty necessarily arises therefrom to keep such streets and alleys in such repair as that the inhabitants of said town and the general public may safely and conveniently pass and repass over, along and across such streets and alleys. Lowrey v. The City of Delphi, 55 Ind. 250. The law is well settled, that municipal corporations, having the powers ordinarily conferred upon them over the streets, alleys and bridges within their limits, “ owe to the public the duty to keep them in a safe condition for use in the usual mode by travellers, and are liable in a civil, action for special injuries resulting from neglect to perform this duty.” Dillon Munic. Corp., sec. 789, et seq., and authorities cited.
But, while this liability unquestionably exists, as against the municipal corporation, it may be and often is the case, that the unsafe- condition of the street or alley has been brought about by the wrongful act or omission of
The theory of the law, as thus enunciated, is this: That while the municipal corporation, by reason of its exclusive power over the streets and alleys within its corporate limits, must be held to a strict and rigid performance of the duty, necessarily resulting from such exclusive power, to keep such street and alleys in a safe condition for the ordinary use thereof by the public, and will be liable in damages for injuries resulting from its neglect to perform such duty; yet, where it appears, in such a case, that the unsafe condition of the street or alley has been brought about by the wrongful act or omission of a third party, the municipal corporation shall have its remedy against such third party for the repayment of the damages it has sustained.
¥e know of no good reason why this doctrine should not be made applicable to the reimbursement to the municipal corporation of such damages or expenses, as it may have incurred by reason of the wrongful act of a third party, in excavating its streets or alleys, without an express license therefor, or by the wrongful omission of such third party, for an unreasonable time, to put such
In the case at bar, the appellant averred in its complaint, that it had necessarily expended the sum of fifty dollars, which sum it was worth to fill up the ditch or sewer, which the appellees had dug along and across two of the streets,-within the appellant’s corporate limits. Manifestly, from the averments of the complaint, the appellees’ acts, in digging said ditch or sewer, and in leaving the same open for an unreasonable time, were the cause or occasion for the necessary expenditure by the appellant of the sum of fifty dollai’s, in closing up said ditch or sewer; and it is clear, therefore, that the appellant was damaged by such acts of the appellees to the amount of such necessary expenses.
In our opinion, therefore, the court below erred, in sustaining the appellees’ demurrer to the appellant’s complaint.
The judgment of the court below is reversed, at the appellees’ costs, and the cause is remanded, with instructions to the court to overrule the demurrer to the com