73 Ind. App. 30 | Ind. Ct. App. | 1920
The record in this case discloses that appellee was the owner of lots 14 and 15 in Lytle’s subdivision of lot 175 in Powell’s addition to the city of Valparaiso, Indiana; that a strip of land within the limits of said city thirty feet in width and known as Bush street abutted on the north side of said lots; that said city had improved a portion of the south half of said thirty-foot strip with a cement gutter and crushed stone, five and one-half feet wide, and had attempted to assess the cost of said improvement against said lots; that, said assessment not having been paid, said lots were sold by the county treasurer, who was ex-officio treasurer of said city, for the payment of the same; that appellant became the purchaser of said lots at said sale, and a certificate was issued to him by said treasurer evidencing such fact. Appellee brought this action against appellant, alleging that said assessment and sale were void and asking that said certificate be canceled and annulled, and that his title to said lots be quieted as against appellant and all persons claiming through or under him. The complaint is in two paragraphs on which issues were duly joined. A trial was had by the court, resulting in a judgment in favor of appellee, decreeing that said assessment, sale and certificate were void, canceling and annulling the same, and quieting appellee’s title to said real estate as against appellant in so far as it may have been affected by said assessment and sale and the issuance of said certificate. Appellant filed a motion for a new trial, which was overruled. This action of the court constitutes the sole error on which appellant relies for a reversal.
The only reasons assigned by appellant in his motion for a new trial, and presented on appeal, are that the decision of the court is not sustained by sufficient evidence and is contrary to law. This requires a consideration of the evidence. An examination of the record
_ “Whereas, said Railway Company owns and occupies as a part of its station-yard and premises within the corporate limits of said city of Valparaiso, land against which Lytle Street in said City abuts, which land it does not at present fully use; and whereas said city of Valparaiso desires to secure for use of the public a passageway between said Lytle Street and Calumet Street in said City across a part of said land, along the southerly lines thereof;
Now, therefore, in consideration of the premises, said Railway Company hereby agrees with said City of Valparaiso that a strip of land 30 feet in width, extending along and adjacent to the southerly line of its station premises aforesaid, from a point about 75 feet westerly of the westerly line of said Lytle Street to the westerly line of Calumet Street, a distance of 500 feet more or less, may be used by the public for a passageway for vehicles and persons ; * * * but with the express condition and limitation that whenever said Railway Company shall for any purpose require said strip of land for its own exclusive use, it or its successor may re-enter and repossess the same, and occupy it as fully at present, and as if this agreiement had not been made; * *
That thereafter on July 26, 1914, the common council of said city .adopted a resolution for the improvement of certain streets therein, among which was Bush street as above described, to be paid by special assessments upon the property benefited thereby; that thereafter
Having reached this conclusion, it becomes unnecessary to consider the other questions presented by appellant. For the reasons stated, we conclude that the court did not err in overruling appellant’s motion for a new trial. Finding no error in the record, the judgment is affirmed.