62 Ind. App. 342 | Ind. Ct. App. | 1916
Appellants on their own behalf, and for all other taxpayers of the city of Valparaiso other than appellee Lowenstine, brought suit against the city and appellee Lowenstine to have a proceeding vacating a portion of a certain alley of the city declared null and void, and to enjoin appellee Low-ens.tine from using the vacated portion of the alley other than for a public purpose. A review of the action of the trial court in refusing the relief sought, ■is based upon exceptions reserved to conclusions of law rendered by the court upon facts specially found. Appellees have assigned cross-errors, but the conclusion reached on the merits of the appeal makes it unnecessary to consider the same.
From the facts found by the court, block 22 in the city of Valparaiso, which is a city of the fifth class, is within the principal business district of the city. An alley 16§ feet wide extends from east to west through the center of the block, and a similar alley from north to south, the alleys intersecting in the center of the block, thus subdividing the block into four equal divisions. On June 13, 1913, appellee Jacob Lowenstine and six other citizens of Valparaiso petitioned for the vacation of 132 feet off the west end of the alley running east and west through the block. Omitting the formal parts, the petition reads:
“The undersigned, residents and freeholders of the city of Valparaiso, Indiana, petition the common council of said city for the vacation of*346 an alley, in said city, running east from Franklin street through the west half of block 22 original survey of the town (now city) of Valparaiso, to the west line of the alley running north and south through said block 22, for the following reasons:
1. The portion of said alley asked to be vacated is not a public utility, and it would promote the public interests, and save the city from responsibilities and the expense of maintaining the alley sought to be vacated.
2. That said alley is seldom used by any one excepting by J. Lowenstine & Sons, and the said J. Lowenstine one of the petitioners hereto, is the owner of lands on both sides of the alley proposed to be vacated, and if said alley shall be vacated he contemplates the enlargement of the department store ofj. Lowenstine & Sons to such an extent as will make necessary the employment of twenty or twenty-five additional clerks and assistants and tend to attract more people to the city of Valparaiso for trading purposes.
3. That most of the modern cities of the size of Valparaiso have but one alley running through the block; and that the north and south alley, through said block 22, and the alley from the east side of said north and south alley to Michigan street will answer every convenience of all the property owners in said block.
4. While the question of the vacation of said alley must be determined upon the issue of whether or not it is of general importance, it-may be well for the petitioners to suggest to the common council that said J. Lowenstine is and always has been a public spirited man, and has built a large mercantile establishment in said city, and established a steel factory therein, which is now employing twenty-five men at an annual aggregate salary of fifteen thousand dollars, not including the salaries paid to the officers of the concern. For the.above reasons the petitioners.respectfully ask that the portion of the alley above described be vacated.”
If appellants suffered any special injury it must be inferred from the facts found, as there is no positive finding in this respect. As to whether appellants whose properties do not abut upon that part of the alley vacated had such an interest as taxpayers to maintain the suit, which appellees earnestly contend they did not have, we need not decide, as the conclusion reached on the other branch of the ease does not call for a decision of this question. After a careful consideration of the various questions presented by the learned and exhaustive briefs, we find no error that calls for a reversal of the judgment. Judgment affirmed.
Note. — Reported in 113 N. E. 429. Power of city council to vacate streets, 26 L. R. A. ,823; 2 Ann. Cas. 87. See under (9) (10), (11) 28 Cyc. 840, 849.