MUNICIPAL CORPORATIONS-Continued.
or parcel of land can be assessed to pay the cost of a main sewer
adapted to receive drainage from connecting collateral sewers
unless such lot is benefited directly as abutting property, or in-
directly by reason of the fact that such sewer is calculated to
afford it an outlet by means of a collateral sewer already in ex-
istence or to be thereafter constructed.
Prevo v. City of Hammond, 612, 620 (9).
29. Sewers.-Assessments.-Exemptions.-Cemeteries.-A ceme-
tery company, incorporated for the purpose of profiting by the
sale of burial lots, owning land included within a legally created
drainage district, is, in the absence of a statute exempting such
land from sewer assessments, liable therefor, where it appears
that a reasonable assessment may be enforced against realty
owned by such company without molesting the lots or parcels of
ground actually in use for burial purposes.
City of Gary v. Gary, etc., Cemetery Assn., 446, 453 (7).
30. Sewers. Assessments.-Exemptions.- Cemeteries.- Statute.
-Section 4447 Burns 1914, Acts 1905 p. 185, providing that the
property and assets of cemetery corporations not organized for
profit shall be exempt from taxation, pertains only to the ex-
emption of taxes imposed by legislative authority, and does not
apply to local assessments based upon the theory of benefits to
property assessed.
City of Gary v. Gary, etc., Cemetery Assn., 446, 451 (2).
31. Sewers.-Assessments.- Exemptions.- Cemeteries. Statute.
-Section 8726 Burns 1914, Acts 1905 p. 219, 302, providing that
land used or occupied for cemetery purposes shall not be as-
sessed for the construction of sewers or drains adjacent thereto,
applies only to such sewers or drains as, by their location and
construction, are in actual physical contact with, or which abut,
adjoin or are near lots or parcels of land held or used for ceme-
tery purposes, and the statute does not apply in a case where
the sewer at its nearest point to the cemetery is more than 600
feet away.
City of Gary v. Gary, etc., Cemetery Assn., 446, 448 (1).
32. Construction of Main Sewer and Collaterals.-Proceedings.—
Under §§8722, 8724 Burns 1914, Acts 1905 pp. 219, 302, 305, a
city may construct a main sewer and one or more connecting
lateral sewers as one work and under a single proceeding if the
connecting laterals are purely local sewers, the cost of which
must be assessed entirely against abutting property, but where
the connecting sewer is one intended to receive sewage from
other connecting sewers, a separate proceeding would be re-
quired necessitating the formation of a subordinate sewage dis-
trict including the territory to which such connecting sewer af-
fords an outlet, so that the assessments can be made and ap-
portioned as required by the statute.
Prevo v. City of Hammond, 612, 625 (14).
33. Construction of Sewers.— Assessments.— Statutes.— Under
§8722 Burns 1914, Acts 1905 p. 219, 302, relating to the con-
struction of sewers, no proceeding is authorized which would re-
sult in the fixing of the assessments in a way other or different
from that provided in the act, or which would result in assess-
ing any real estate for any part of the costs of construction of
a sewer which would not either directly or indirectly afford an
outlet for its sewage. Prevo v. City of Hammond, 612, 622 (11).
MUNICIPAL CORPORATIONS-Continued.
34. Construction of Main Sewers.-Separate Proceedings.-As-
sessments.--Statutes.-Where a proposed drainage project un-
der §§8722, 8724 Burns 1914, Acts 1905 pp. 219, 302, 305, con-
templated the construction of a sewage pumping station and two
main sewers, each with connecting collaterals, and each of such
sewers drained separate and distinct areas and either could not.
be utilized as an outlet for any portion of the district drained by
the other, such sewers cannot be constructed in a single proceed-
ing and the costs thereof assessed against the real estate within
a district so formed as to include the area drained by both, but
separate drainage districts must be formed embracing the ter-
ritory drained by each of such sewers, so that assessments can
be made and apportioned as to the lands benefited, as the statute
contemplates the levying of assessments for a sewer only against
real estate benefited directly as abutting property or indirectly
by finding an outlet through such sewer.
Prevo v. City of Hammond, 612, 620, 623, 626 (10).
35. Sewers.-Statute.-Section 8722 Burns 1914, Acts 1905 p.
219, 302, provides for the building of a local sewer for the bene-
fit of abutting property only, and for the construction of a large
sewer intended and adapted to receive sewage from connecting
or collateral sewers already in existence or which may be con-
structed, but it is only when the proceeding contemplates the
construction of a sewer adapted to receive sewage from con-
necting collateral sewers that the statute provides for the for-
mation of a drainage district including the territory which will
find an outlet through such sewer, the cost of which is assessable
upon all lots and parcels of land within the district and which
would find an outlet through the main sewer by means of con-
necting drains.
Prevo v. City of Hammond, 612, 619 (7).
36. Sewage Disposal Plant.-Construction and Assessments.-
Statutes.-Under §8696 Burns 1914, Acts 1905 p. 219, 278, au-
thorizing cities to erect, maintain and operate works for the col-
lection, treatment and disposal of sewage, but prescribing no
method of exercising the power, and under §8965 Burns 1914,
Acts 1905 p. 219, 409, providing that where a power is granted
by any section of the cities and towns act to any officer or board
and no method is provided for the exercise thereof, and pro-
vision is made by any other section of the act or by any law for
the exercise of such or a similar power which is applicable to
the exercise of the authority so granted, then such other section
or law, in so far as it provides a method for the exercise of the
power, may be followed as fully as if incorporated in and made
a part of the section granting such authority, a pumping station
and sewage disposal plant may be constructed and assessed
against the real estate benefited thereby to be included within
a district to be formed for that purpose in accordance with
§8722 Burns 1914, Acts 1995 p. 219, 302, since the power to
construct sewers and build sewage pumping stations are similar
powers, both granted by clause 7 of §8696 Burns 1914, and, a
method having been provided for the exercise of the authority
to build sewers, that method may be followed in the erection of
a pumping station. Prevo v. City of Hammond, 612, 624 (13).
37. Sewers.-Division of Cost.-Statute.-Under §8724 Burns
1914, Acts 1905 p. 219, 305, relating to the division of the cost
of the construction of sewers adapted to receive drainage from
connecting sewers, the cost of so much of such sewer as would
MUNICIPAL CORPORATIONS-Continued.
be necessary to provide an adequate local sewer for the property
abutting thereon shall be assessed against such abutting prop-
erty and the remainder of the cost shall be primarily assessed
against all the lots and parcels of land included in the drainage
district.
Prevo v. City of Hammond, 612, 620 (8).
38. Drainage Districts.-Territory Included.-Under $8722
Burns 1914, Acts 1905 p. 219, 302, a drainage district to be
formed in the construction of any sewer should include all ter-
ritory which will ultimately find an outlet through it, and no
other.
Prevo v. City of Hammond, 612, 622 (12).
39. Drains.- Assessments.- Statute.- "Property."- "Property"
as used in §8729 Burns 1914, Acts 1909 p. 238, authorizing cities
under certain conditions to construct or change any watercourse,
drain and sewer, and providing for the payment for the im-
provement by making assessments against property benefited,
means real property as distinguished from personal property.
Haynes Automobile Co. v. City of Kokomo, 9, 13 (4).
40. Drains.-Reference of Appeals to Reviewers.-Statute.-In a
proceeding by a city to improve an open drain under §8729
Burns 1914, Acts 1909 p. 238, providing for the appointment
by the circuit court of a board of assessors to make an assess-
ment roll showing the benefits to lands affected and a roll
awarding damages to lands injured by the proposed improve-
ment, and that appeals from such board's assessment may be
made to the circuit court within fifteen days from the time such
assessment rolls are filed to be conducted as other appeals, the
circuit court committed error in sustaining the city's motion to
refer the appeals to three disinterested reviewers and in over-
ruling appellant's various motions to submit the appeals to the
court for hearing and to strike out the report of the reviewers.
Haynes Automobile Co. v. City of Kokomo, 9, 13 (3).
41. Drains.-Property Assessable.-Interurban Railroad's Right
of Way. Statute.-A company owning and operating an inter-
urban railroad in the streets of a city does not hold any ease-
ment or interest in the land upon which the tracks are located,
the permission of the city giving the right to use the streets
being a part of the public easement, so that the city, and not
the railroad company, is assessable for the benefits accruing to
the public easement in the street from the improvement of an
open drain under §8729 Burns 1914, Acts 1909 p. 238, there be-
ing no showing that the railroad's franchise provided that it
should pay any portion of the benefits to the public easement or
that the railroad company's right of way was a private one.
(Marion, etc., Traction Co. v. Simmons [1913], 180 Ind. 289,
distinguished.)
Haynes Automobile Co. v. City of Kokomo, 9, 13, 15 (5).
42. Statute.-Construction.-The proviso in §4447 Burns 1914,
Acts 1905 p. 185, amending the act of 1895, Acts 1895 p. 18, ex-
empting the real estate of cemetery corporations from sewer
assessments is without legislative force since the subject-matter
of the proviso is not within the title of the original act, nor a
matter germane to the subject expressed therein, and there is
no provision in the body of such act upon which the proviso
may operate.
City of Gary v. Gary, etc., Cemetery Assn., 446, 452 (4).
MUNICIPAL CORPORATIONS-Continued.
43. Streets.-Property Assessable.-Railroad's Right of Way.—
A railroad company's right of way abutting upon a street is
subject to assessments for the improvement of such street.
Haynes Automobile Co. v. City of Kokomo, 9, 14 (6).
44. Public Parks.-Joint Control by Cities.-Failure to Remon-
strate.-Effect.-Statute.-The failure of the voters of either
city proposing to enter into an agreement to create a joint park
board to remonstrate, as provided in the act of 1915, Acts 1915
p. 78, is an assent to the arrangement and is as binding as if
the same had been affirmatively assented to by a formal vote.
Brown, Treas., v. Baltimore, etc., R. Co., 81, 87 (3).
45. Joint Public Park Act.-Constitutionality.--Uniform Taxa-
tion.-Delegation of Taxing Power.-The act of 1915, Acts 1915
p. 78, relating to the joint maintenance and control of public
parks by neighboring cities and providing that the joint park
board composed of the members of the park boards of the cities
entering into the arrangement, shall be authorized to levy a tax
for the purchase and maintenance of parks, is not unconstitu-
tional and void either as being an attempt to delegate the gen-
eral taxing power to an appointive body or as violating §1 of
Art. 10 of the Constitution requiring the general assembly to
provide for a uniform and general rate of assessment and taxa-
tion. (State of Indiana, ex rel. v. Fox, Comptroller [1902],
158 Ind. 126, distinguished.)
Brown, Treas., v. Baltimore, etc., R. Co., 81, 88 (4).
V. USE, REGULATION AND CONTROL OF STREETS.
46. Dangerous Streets.-Duty of City to Maintain Barriers or
Fences. Although, as a general rule, cities are not required to
erect barriers or fences along highways to prevent travelers
from falling into nearby excavations, yet when an unguarded
pit is so located as to endanger travelers using the street with
ordinary care to avoid exposure to injury, reasonable precau-
tion and prudence require the city to render the use of the street
reasonably safe by placing a guard along the pit and its failure
to do so is negligence; and the city is not relieved of such duty
by maintaining an electric arc lamp for the purpose of illumi-
nating the street at the place of danger, since such lamps can-
not be kept lighted under all conditions.
City of Wabash v. Bruso, 637, 643 (5).
47. Speed Regulations.-Scope.-Fire Apparatus.-It is the gen-
eral rule that municipal ordinances limiting or regulating the
speed of travel through city streets are not applicable to vehicles
of the fire department on their way to fires, even without ex-
press provision to that effect.
Indianapolis Traction, etc., Co. v. Hensley, 479, 486 (4).
48. Streets.-Vacation.-Authority.-Delegation by Legislature.
-Primarily the legislature has the right to control and vacate
public streets, but this jurisdiction, in this State, has been dele-
gated to municipalities or local tribunals.
Falender v. Atkins, 455, 457 (1).
49. Vacation of Street.-Proceedings of Board of Public Works.
-Presumption.-In the absence of a contrary showing, it will
be assumed that the board of public works complied with the
statutes (§8700 et seq. Burns 1914, Acts 1905 p. 219), in a pro-
ceeding to vacate a street. Falender v. Atkins, 455, 457 (2).
MUNICIPAL CORPORATIONS-Continued.
50. Defect in Street.-Injury to Pedestrian.-Grounds of Recov
ery.—In an action against a city for fatal injury resulting from
a failure to properly guard a stone quarry, recovery depends
upon proof of the negligence charged, that it was the proximate
cause of the injury, and a failure to show, as a defense, that
the injured party was guilty of contributory negligence.
City of Wabash v. Bruso, 637, 640 (1).
51. Defect in Street.-Injuries to Pedestrian.-Action.-Verdict.
-Answer to Interrogatories.-In an action against a city for
the death of plaintiff's decedent, alleged to have been caused by
the municipality's negligence in failing to keep one of its streets
in a reasonably safe condition for travel, where answers to
special interrogatories show that deceased fell into an un-
guarded quarry pit adjoining the north line of the street while
on his way home on a night so intensely dark that a person of
normal vision could not see the pit, which was not illuminated
at the time of the accident because an electric arc lamp main-
tained by the city for that purpose was not burning, that the
location of the pit and the fact that it had remained without
any barrier or fence for more than ten years was known to de-
ceased, that he could have reached his home by walking in the
center or on the south side of the street or by turning into an
unimproved street by which route he would pass another un-
guarded pit, and that for a number of years a footpath had
been generally used by persons living on the north side of the
street when passing the pit, such answers are not in irreconcila-
ble conflict with a general verdict for plaintiff as showing the
existence of a safe and unsafe way and that deceased was guilty
of contributory negligence in failing to take the safe way.
City of Wabush v. Bruso, 637, 640 (4).
52. Injury to Pedestrian.-Statute.-Section 8962 Burns 1914,
Acts 1907 p. 249, requiring that a written notice containing a
brief description of the time, place, cause and nature of the in-
jury be given to the city within sixty days thereafter as a con-
dition precedent to maintaining an action for damages, applies
only to such actions when the injury to person or property re-
sults from any defect in the condition of any bridge, street,
alley or highway, but does not apply in a case where the injury
resulted directly from the negligence of the city's agent in fail-
ing to use due care in the manner in which he raised a bridge.
City of Michigan City v. Werner, 149, 154 (1).
53. Injury to Pedestrian.-Action.-Complaint.—Agency of City.
-In an action against a city for injuries resulting from alleged
negligence in raising a public bridge on which plaintiff was
traveling, a complaint alleging that the city exclusively oper-
ated and controlled the opening and closing of the bridge and
employed an operator to operate it and to keep off travelers
when it was about to be raised, and that the operator saw and
knew that plaintiff was about to enter the bridge, but failed in
the performance of his duty, sufficiently alleges that the opera-
tor was acting as the agent of the city at the time of the injury.
City of Michigan City v. Werner, 149, 155 (3).
54. Negligence of Agent.-Injury to Pedestrian.-Liability.-One
employed by a city to operate a public bridge is an agent of the
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