Swaim v. City of Indianapolis , 202 Ind. 233 ( 1930 )

ON APPELLEE'S MOTION TO MODIFY THE OPINION AND ON APPELLANT'S PETITION FOR A REHEARING. Appellee says that a question which was presented and argued by both parties, but which we deemed unnecessary to decide, is of vital public importance and should be decided, viz., whether the assessments for the street improvement here being made should be levied under § 10440 Burns 1926 (§ 107, ch. 131, Acts 1921), or under § 10484 et seq. Burns Supp. 1929 (ch. 23, Acts 1923, as amended by ch. 74, Acts 1929).

It is admitted that a determination of this question is not essential to a decision of this appeal, but appellee says that such question must be decided when it comes to assessing the cost of the completed work here involved, and that further litigation by the parties hereto will be avoided if this court now decides it. It is also shown to the court that about 50 cases involving similar questions are pending in the courts of Marion County, and attorneys interested in such cases have filed briefs herein asamici curiae.

The exact question is whether the cost of widening and resurfacing the roadway of a street which is already improved must be borne in the proportion of three-fourths by 21, 22. the city and one-fourth by the property owner under the provisions of §§ 10484, 10485, or whether the city may elect to assess the property owner under § 10440 for the entire cost of such improvement. Section 10440 et seq. Burns 1926 covers generally the subject of street improvements. The later act, § 10484 et seq. Burns Supp. 1929, deals with particular subjects thereof as indicated by its title (see § 3, ch. 74, Acts 1929, § 10485.1 Burns Supp. 1929), viz.:

"An act concerning the resurfacing and widening of permanently improved roadways, including gutters, curbs and sidewalks in connection therewith, in cities of the first class, providing for the levying of a special tax for the payment of the same, providing for the creation of a special fund and the collection and disbursement of the same."

The act of 1923, as amended in 1929, does not provide a new system for street improvements; it adopts all the old law, § 10440 et seq. Burns 1926, except for the changes therein indicated, in which respect it prevails over the provisions of the old law. 25 R.C.L. 1010; City of New Albany v. Lemon (1925), 198 Ind. 127, 149 N.E. 350, 152 N.E. 723. Section 10484 et seq. Burns 1926, regarding the resurfacing and widening of the roadway of improved streets in cities of the first class, determining the kind of pavement, and the apportionment of costs, applies to all improvements coming within its terms.

We have carefully considered the reasons advanced by appellants in their application for a rehearing (some of which are based on an erroneous construction of what the court did decide, and the others which present the same contentions already fully considered), and the application for rehearing is denied.

Counsel for appellee, in their brief and in oral argument, have stated that the city does not desire at this time to deprive appellants of their basement or vault, and that "the real 23. gist of this case is `who pays the price?'" We have determined that the property owners must bear the expense of conforming their servient use to the dominant use of the city, and we deem it equitable, in affirming the order of the trial court denying the temporary injunction, to suggest to the trial court that it definitely save for appellants the right, if they desire, to retain their basement and to perform at their own cost, under the control and supervision of the city, the construction work necessary to support the new roadway and sidewalk. It is, therefore, suggested that the trial court (unless a different showing of facts should develop upon final hearing) extend to the appellants the opportunity and right, within a reasonable time, to notify the appellee city that they desire to retain such space beneath the sidewalk and street and to submit plans and specifications and proposed contract covering the same to (the Board of Public Works and City Civil Engineer of) said city, such plans, when approved, to be carried out without delay and wholly at appellants' expense, subject to the control, supervision and acceptance of said city by its proper officers.