Parry v. City of Richmond

27 Ind. 66

• Court: Indiana Supreme Court
• Decided: November 15, 1866
• Status: Published

Opinions

Ray, C. J.

This was an application for an injunction to prevent the city of Richmond from opening a street over certain real estate, without first paying damages for the injury to the possession of the appellant. The complaint sets out a section of the special charter of the city, requiring the .appointment of an arbitrator to estimate the damages to the property over which the street is to be located, and the payment of the amount fixed, before opening said street. It is averred that King, the former owner of the property now claimed by the appellant, together with other persons, constituting a majority of the owners of property bounded on the proposed street, petitioned the common council of said city, in writing, to open and continue one of the streets of said city over and across the lands of the petitioners and of others, and that said council, on the 19th day of February, 1850, by an ordinance, declared said street opened, but did not proceed to have the damages estimated, nor to have said street opened, until the 4th day of May, 1858, when a resolution was adopted by them declaring said street opened, in accordance with the ordinance of February 19, 1850; that between the date of the filing of the petition and the resolution of the council in May, 1858, circumstances had so changed the interests of the petitioners that, they no longer desired the street to be opened; that the appellant had purchased the property described in the complaint on the 28th day of April, 1858, without any knowledge that a street had been located over it, and that for two years after his purchase, the city had listed the said real estate as his property for taxation.

The appellee answered, first, in denial; second, that the former owners of the property had waived all claim for damages, and that therefore the council had never appointed arbitrators to fix the damages. A demurrer to this paragraph was overruled. This paragraph of the answer was not, perhaps, sufficient, as the complaint averred that the land was sold to the appellant before the street was opened. Such sale, before the council acted upon his waiver, might, perhaps, be regarded as a withdrawal of the waiver, and the street could not thereafter be opened without compensation. The third paragraph of the answer, however, alleges facts which amount to a dedication of the property as a street by the former owner, and also avers that it was so used at the time the appellant purchased. The evidence fully sustains this paragraph, and the appellant, therefore,_ sustained no injury by the ruling of the court upon the second paragraph of the answer.

The judgment is affirmed, with costs.