147 Ind. 517 | Ind. | 1897
Clifford avenue, sixty feet in width, runs along the north side of Woodruff Place; and the authorities of the town, understanding that the south half of said avenue was within the limits of the corporation, instituted proceedings, under the Barrett law, for the improvement of seventeen and a half feet of the roadway next south of the middle line of the
The facts were found specially by the court, and are, in substance, as follows:
(1) On October 2, 1872, James O. Woodruff and John A. Comingore were the owners of the W. one-half N. E. one-quarter section 6, T. 15, E. 4 E.; (2) On said day Woodruff and Comingore made a plat of said eighty acres, a copy of which plat, with lines, figures and words, is made a part of the finding. The description entered on the plat is as follows: “Plat of the subdivision of the W. one-half N. E. one-qnarter, 6, 15, 4 E., in lots, streets and alleys, designated as Woodruff Place. The size of the lots and width of the streets and alleys is indicated in feet and hundredths of a foot on the plat. A strip of ground two feet in width along the entire length of the east side of the said half-quarter section, and a like strip along the north side of each of the lots bordering on Clifford avenue, and a like strip along the south, side of each of the lots bordering on Michigan street, is hereby reserved for the location of the fence on the said three sides; and the said strips on the north, east and south sides, as shown on the plat, together with the streets and alleys herein indicated, are to be held as the private property of the owners of the several lots in the said Woodruff Place, collectively, and are to be perpetually held for the use and benefit of the said owners, as streets, alleys and location for fences, and not otherwise. The said streets and alleys not being dedicated to public use, but only designated as such for
Upon the facts so found, the court concluded that “the law is with the plaintiff, that he is entitled .to have his title quieted, as prayed for in the complaint.” A decree was entered accordingly. The assignment of
No question is made as to the regularity of the proceedings before the town board, under the statutes providing for the improvement of streets and alleys. Two contentions only are made by appellee:
(1) That the part of the street to be improved is not within the corporate limits of the town; and (2) that the lot assessed for the improvement does not abut upon the street, being separated therefrom by the two-foot strip.
For appellee to succeed under his complaint, it was necessary that the facts found should establish his right to have his title quieted. As we have seen, the sufficiency of the facts found to show that the proceedings before the board were regular is not disputed. If, however, the part of the street to be improved were outside the corporate limits of the town, the regularity of the proceedings would not avail. The board could have no jurisdiction, and the assessment, together with all the other proceedings, would be void. But the board assumed that the part of the street to be improved was within the town limits, and proceeded to make the improvement accordingly. We must presume, therefore, until the contrary is shown, that their action was lawful. It cannot be presumed, as said in Cummins v. City of Seymour, 79 Ind. 491, “that the corporate officers will violate the law and perpetrate a wrong. The presumption is the reverse. Until the contrary appears the officers of a public corporation are presumed to have done their duty.”
If, therefore, it were a fact that the improved part of Clifford avenue was no part of Woodruff Place, that fact should appear in the findings. We have been unable to discover any such fact in any finding. On the
The plat and description set out in the second finding show that the half-quarter section extends lengthwise from Michigan street to Clifford avenue. A section being a mile square, the length of {he half quarter section should be half a mile, or 2,640 feet. But, counting the width of the thirty lots from Michigan street to Clifford avenue, together with the width of the alley midway between, and also the width of each of the two-foot strips, we find less than 2,500 feet or over 140 feet less than the length of a half quarter section. This would indicate that even more than half of Clifford avenue and Michigan street must-be within the limits of Woodruff Place; and that the town authorities were quite within bounds when they assumed the middle of Clifford avenue as the north limits of the corporation. This conclusion is strengthened by a like examination of the distance, shown in feet, across the plat, from east to west, which is found to be very near what should be the width of a half quarter section.
The fourth finding shows that Clifford avenue, under that name, and under the name of Pogue’s Creek Gravel Road, has existed as a highway for over forty years, “along and upon the entire north line of said land thus platted.” And in the sixth finding it is shown that the city of Indianapolis adjoins Woodruff Place on the north, “and that said Clifford avenue lies along and upon” the boundary line between said two corporations. If the avenue “lies along and upon the north line of the town plat, and -“along and upon” the boundary line between the city and the town, it is clear that the north line of Wood-ruff Place must run along and in the avenue; otherwise the avenue could not lie “upon” such boundary
As, therefore, there is no finding that the south half of Clifford avenue is not within the corporate limits of Woodruff Place; and as, on the contrary, all the facts found in relation to that issue go to show that the town plat extends to the middle' of the avenue, we must conclude that, not only has the presumption in favor of the action of the board in assuming such middle line as the north boundary of the plat not been overthrown, but that it has been abundantly sustained.
The remaining contention for quieting appellee’s title to his lot, namely, that said lot 59 does not abut upon the avenue, by reason of the intervening two-foot strip, cannot be sustained, for several reasons. Even if the two-foot strip could be considered as property which should first be assessed, yet that would be insufficient to show that the title to appellee’s lot ought to be quieted. By section 3 of the Barrett law. (section 4290, Burns’ R. S. 1894), it is provided, amongst other things, “That where such land is subdivided or platted the land lying immediately upon and adjacent to the line of the improvement and extending back fifty feet shall be primarily liable to and for the whole cost of the improvement, and, should that prove insufficient to pay such cost, then the second parcel and other parcels in their order to the rear
In the second place, we think, it is clearly shown from finding two, that the two-foot strip “along the north side of each of the lots bordering on Clifford avenue,” is a part of each of said lots, subject to a
The court seems to have held, as shown in the opinion filed with the transcript, that the original recording of the plat of Woodruff Place was without authority of law, inasmuch as Woodruff Place was then neither a city or town nor an addition to a city or town. Taylor v. City of Fort Wayne, 47 Ind. 274; Forsythe v. City of Hammond, 142 Ind. 505, 30 L. R. A. 576. Even if this were true it does not follow that there was no dedication of the plat, lots, streets, alleys, and fence reservations. Even if the record of the plat were a nullity for many purposes, and there were otherwise no express dedication of the streets, alleys, and two-foot strips for fences, yet the public acts of the proprietors in making and using a plat, and selling lots in reference thereto, would constitute a dedication
As was said in Brophy v. Richeson, supra, “The rule is, that a survey or plat referred to in a deed becomes a part of it, as if it were written in the deed.” There was an implied, if not an express, dedication of the streets, alleys, and fence reservations. Subject to such dedication and easements, the fee is in the abutting lot owners.
From any point of view, it must be apparent that the court erred in its conclusions^ of law.
The judgment is reversed, with instructions to the court to restate its conclusions of law in accordance with this opinion, and to render judgment thereon in favor of the appellants.