03-11-40 Council Meeting Minutes

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'street' is a generic one and includes sidewalks. A public street is a public highway and a sidewalk is a part of the street. Highways lying within the boundaries of cities and towns of the State are usually designated as streets and.the power to control and regulate streets has been delegated by the Legislature to the municipal corporations within which they are situated. The delegation of this power imposes upon such municipal corporation the duty to keep its streets and alleys open and unobstructed and in a safe condition for public travel. _T1w court recognizes as not inconsistent with the valid exercise of that power, the authorization by ordinance of a temporary use of a part of the street by owners of abutting property while engaged in building or making pavement. However, as pointed out by this court in State vs. Berdetta, municipal corporations have not had conferred upon them the power to author- ize permanent obstruction of a public street. The permanent obstruction of a public street is in itself an<.unlawful act, essentially interferring with the free use of property as well as the comfortable enjoyment of life. All the citizens are affected, for a highway, to adopt one of the definitions found in the books, is a road which every citi- zen has a right to use. The right to pass and repass upon a public highway is not restricted to any part for the public are entitled not only to a free passage along the highway but to a free passage along any portion of it not in the actual use of some other traveler. This doctrine is declared by this court in the case of City of Indianapol' vs. Gaston, 58 Ind. 224, where it is held that the entire width of a sidewalk must be maintained convenient and safe for the use of the travelers. No doctrine is more reasonable or more firmly settled than that the streets of a city are for the use of the public, and that no one can have a right to permanently divert a street or a part of a street to private purposes. This court held in the case of City of Richmond vs. Smith, 148 Ind. 294 that the Common Council could not authorize the use of a public street three days of each week for market purposes, though no market house or other structure,permanent or temporary was erected or attempted to be erected, and in the instant case the use of the sidewalks three days each week as shown by the complaint while not a contin%us obstruction was such a permanent and habitual obstruction as to constitute a nuisance. We conclude that no right to use the sidewalk for market purposes has been or can be acquired or created by any alleged action of the municipal corporation in recognizing or permitting their uses for market purposes. The fact that the sidewalks in question have been used for market pur- poses for more than:.fifty-,years, creates no right to such use. No one can acquire a right to the adverse use of a legally established highway or user no matter how long such use may continue for each day's user is a nuisance pun- ished by fine ". For the reasons outlined above the Supreme Court denied the request of the plaintiff to enjoin the Board of Public Safety of the city of Indianapolis from enforcing their order. I "simply call this case to your attention so you may know the attitude of the Supreme Court of Indiana on the question involved in this ordinance. Very truly yours, GEORGE N. BEAMER City Attorney ouncilman Hull made a motion that the communication be referred to the Streets and Alleys Committee and that the ommittee confer with the petitioners. Councilman bishop seconded the motion which was carried by a vote of 9 ayes - nays. CITY OF SOUTH BEND, INDIANA Department of Public Works o the Common Council of the City of South Bend March 119 1940 lemen: t the last regular meeting of the Common Council a proposed ordinance for the annexation of certain property to the ity of South Bend was referred to the City Plan Commission for an investigation and report. he Board of Public Works and Safety wishes to recommend that the School Board be given an opportunity to study this roposed annexation in relation to its effect on the School City and its ability to serve the proposed area. problems of sewerage, drainage, pavements, sidewalks, street cleaning, street maintenance, and garbage collecti ld be considered. , lso the problems encountered in providing fire and police protection should be given consideration. ue to the importance of these problems, the Board of Public Works and Safety recommends that action by the Common ouncil be delayed until a thorough study has been made. Very truly yours, CLYDE E. WILLIAMS Chairman of the Boardof Public Works CITY PLAN COWI.AISSION South Bend, Ind. o the Common Council, Uity of South Bend, Indiana March 9, 1940 lemen: e City Plan Department has examined the descriptions of the several parcels included in the area proposed to be vexed to the City. slight modification of the description of parcel No. 4 was found advisable to avoid including a small portion of yflower Road at Grant Road (Sample Street), also, a description has been prepared to &- scribe as one area the four reels combined. ttached herewith is a copy of the Annexation Ordinance as it would appear if these two suggestions should be incorp- rated for greater exactness. accompanying map shows the several parcels of the described area in colors, together with a portion of the City acent thereto. Yours truly, Dalton Moomaw_ Secretary ORDINANCE NO. 3315 AN ORDINANCE ANNEXING CERTAIN CONTIGUOUS TERRITORY TO THE CITY OF SOUTH BEND, INDIANA s ordinance was given first reading by titb and second reading in full. Councilman Hull made a motion for the pension of the rules. Councilman Bishop seconded the motion. Motion carried by roll call vote of 9 ayes - 0 nays inance given third reading by title and passed by roll call vote of 9 ayes - 0 nays.