Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
07/18/1944 Board of Public Works Special Meeting Minutes
165 SPECIAL MEETING - JULY 18., 1944 • • • • The Board of Public Works held a special meeting on Tu6sda7.,July 18,, 1944 at 2-000 1P.M, Mr. Ralph Longfield was absent. The meeting was called for the purpose of hearing any additional arguments which �(might be made on either side, regarding condemnation resolution No. 2525. Mr. W. E. Miller., Attorney for the remonstrators, was present and the minutes were taken by Leona White, Court Reporter. Saia minutes are attached hereto and made a,part thereof. There being no further business to come before the Board, the meeting was adjourned until the next regular meeting on Monday, July 24, 1944. A T T?' Clerk t U BOARD OF PUBLIC WORKS is held: to hear an ceh:gh D. :J. Farneznat r�mstators. MR.. E'@Yi the record ma3� shave th�t Fudge. E. Ida fil6d brie for the remonstPt.ors.Luc J. `ashes Marl Whitcomb &Kellar s art d John D J::,; �'$rem�n'. A. Roper fits brief on behaif of the otZ, 'arid brief be ese €% i rr 7 J- - J SFi�RTHANt3 REPORTER:; _:-�,. ���`i� �. , .kj. .. ... -. V. i - r Y f3Y�� Y ;: -,' LEONA WHITE - 40;A NATIONAL BANKBUILOIfJCi'` ,�,,� fSk�iOfTHAND REPORTERS OR-4-OS EAST BOW MAID STRE�BT-_ , - - _ = _ SOUTH BENd #}NCdANA `9f' x '_ PHONES'4 ep4?8*4407* + , 1 s5� f I. 2 _ ,� 1��- ' 4 +'fiY" 4 _ ,-� . R( PER . _'. _� ',,.�..,:�1- - ,. -;t 4 - Y .. .. .. _ ,+ 4 ,, � ..1.:�,.���I,,�" ..x_,, ,,1 _-.: • I -hug sac%. was �b.e..,.ne udderhic ire. had ., I,�._I."1 F , �1 procead4d f, fake tie , ro erne . , r �. - " ---- I1I ,� ,..I_,': I... �qg�y,�y `� . 1. �� .��, R Rf)9a i5ht seCtion7 t "I.�. I_",, .:',_, �.��,_-I ,s :. ,L!'�Rs I: haves .des.naad that. _' ghat 1s 'iante the �� r 1. 1*�,:. :,� �,,�-. ._ _. ; ,,-.I,�I�1,,I. �,1 -" ;1 gamer= 3,ve .to 'the .`cat ea d downs. t'or_<Impr0vem,"" a.f,_its ,..IIx�,I_.-"I':,,�--_.-I ,, 1,, -`' aeets. , ,..I � ", �- ., ..I ,:�, �, -I.l I.�.1_�,"�I"t;,...'I 1-',�1_", MR. - R(?PIl�.' ghat is ur `der Sectlon��8 5.03, rhich�:,provi�ie tha : .I 1 '� the city shall `hay' ex-clusive s�z`aq iii., - of. `the z stra�t;�? . .. .I� I.I,... R.MILLER: ges. `` nd later`.o tYir gh the sabtio 5 i de s?. � 1.1 ._ B:ow the city- sh'Z ,-gpera. , i as p golrg mead `and :doing eerI .I:.�-�I� , J 7l L. .I -:_..:, things. I ,e;xvmple :, :Lf :it is I to la out` a'.4 1 I � : 1 _,. - ;�� I:._` theg thisseed o� gi<au are working under, and w-16h ie: Seeti� I"�,I I-�_.- 1.�'.,:,.-I� �8-OQT ,purls,. ",,I',,-, - . , _ .I :,.,I�1� MR LEFTY : . �,,, � 1_ -�. r ."- .� 1-'�,-.I- -. .. o you tale ,the `position that the ;city is utahle i a`...` ,r _I� I ,�7�r single _proceeding, :o secure.. a right -©'..--.may sAd .improve , tie -, ,_'!I'_��.,� - - - . : � ., �� IiI -� rightI r ust there alvvays be . wo `pro�ee� cgs., t� dQ t� �t . _. .�,.1,-'-,. ."I .-* MR . _ MILLER . I I , I.1_' I will nOt , r . r _that Off-�3aitt � because 1t' l iY if uolve I - 1I__,0__���._� ,, ,-�1,, here. I 'ynil2 : answerthe parsigh..bec.oe-per tinca; - . 1-,� - . .- -, ,,; .'_ ...- ha IsI the city `ca'n., ,-PToceed to condemn a right of;-�a.p and 1,I�.- �. 1 % �"I ir�tprave t%at rlgh-af way at tha expense- 'oF the popertr ovnes ; . I- , 1 .�,�". I_- in.arrg. one proceeding. am not sure shout t_he ability ,1�., �-ll�-:.1 . of theclog to take the €iouble action � since it is 9)139,10 I,I I,��-_, � .. 1- . . expend `Ti. 1ts m4e . ..�tscif `' , e ,. ,_ z , owax.�oney. l,vvil nod`. -.�I�1:,I:II1��II .�,I .�,,--�,��_ '��-,�;�,'-1.I�,. a_- ,.—.Ir �� .-. .:- , t,�,,_�"- ,- `, , -_ .� � 1. ;_ _-_ , _'J�� -,., l.-,� "1, �-1 - . 7 '. . °' ._ LEONA u1/HITE .,.:-� `= 1.,' 404`NATI1.ON,AL BAN K,_BUILDING. SHORTH,yND REPOF2TER =�' _ - � '' OR 40& EAST BC MAN STREET' - SOUTH,BEND, IN DIANA _ - ;�PHONES�4=8141, 8±44D7 - -. .. , - , _ ,: :. , .g _:. positively st to it is' zzaposs1, 16 f'or the eta to, do, th t, to take the tiro ..steps tone time; ' o eoHd, mn "the right-o ', . I eke - the p ovem t ;': I. doubt it verb much ..but am ..° not p`oe.itive w' ,... 1?:1R. ROPE: „, . I ft :tha- the roer pro le Y�er-e Imo. MI' LLER : - Na tote proble .-here ivs to improvO the- 'right; ��'4kffaY at. the � pin a of =the prop ert o n s'"' MR.. $0• . T1. W hake never..eontended. they, ... . _ . 11- y . M . Lam: , I Let rae say ,th.s.n mprovemen11 i s made b. the cat at its -expense, - vrhie'h- is the= case :here.- L. poFt on -i,s eontr b ed . 4 , .�' -II I1. .1 VI�I1:1I: .. :.1.—.:�.III,.I�1&�III�II1 I11 1,, . ;I � II� - -I�I I� d.,�.. ....r,. - by the fdc�ral goaemm�t -- Taut that money, once ir the I ..-.I:.. -II:r - � � I. I I 1.� . I .1 I - I1 ,, 1I,-. I�.1111I�,, � ..-- I.I.-�I�:'.i .I. . passessi€ a of :the Vi - - these hcW do; you: make this zmprov.e cent . .II .._�I1 I''. .I—. - . :4i. 1 .. _I 1-. .� F1I :..w-% I.�_I ��";,I�� . I I , - Whiie it is true that the. improvement had dot been_ coripleted ,. .I I- I:..'. ,_.I"�, , I I � _ . �- II -1 I,,. zI. I-I:,I.: I.1, I�. .,'. I�;1m ,'- �I ..1,.I.� I.I III .;I.� -- �1I,..1,-I � : a ,:,,I. t the time of the a.pprqp at30n i ~i reeve heies`§ cohtraet - .I'I-- I � I . ," 1I �� .I -: ,� .�I�. -,,l -�' I 1 .1 I�.� '�I,_ , ..I�� 1. _. �...--I for.= and some ' ror bad' beet done ugan i , - e ':r� g it ©= a _ .1 I-,.�- . ,�1 I�I..e� ` . I� I .- ,- II,�--I.-� .,,: ; -_,.I- . .... .� . . .was t . eo demne , 2 the ad`j oining Ian'ds " gid -the - bene fits .�.--�. 11.:, . I ,.� — . d � � : ��1:� �.1. - � l. 1.I, I11,. .7n-I--- -I�I� .7,L I ..1.. �_-- � or suffered the deimerrt of `rigg a have 'street put ,trA I�"- I , r1.— -�,, : - I ,.. . .I. II .�, .,.�1�- .:- -I�-I ,��:�I--..�— ._."�...I� �. �I,� - 111 —PII-::� �L�.III.1 here= -in front of the land - bet�teen the pareels �. 1n l,I-. .1I,,1 '- ;, ,II.,-.1 � . ::�..1�.1� I. _ I— . � . .�- � ,� I ,� : .. .��tI_, .. I�I, ,�''I.'�I.�1. �� _�. ..I �� .. .:-, :�,I..I . I ��.,�I.I `asses ing; the .benefit 'or the detrj3A# t , 4 hould t%e fact .ghat _. .x,.I1 ..II I- _.I, �0�J.I ',:-- . .�,� �,.- ,, I .�-.�I '1,- Id;IIII, 1 .I ..I - '- I .� '.� ..�_ ., . I- ..;,�1I ,; -x. - - ._. ,- . f; � the r gb ,= y a r un.d.er- Contract o be paved -. c.Qnsidere.d'. - - �: I, �II�I ,I,.�I , — I� ' . I... � - ,I .� �. ���. ��,, 1� ' ..�.I. .: ...� .:. ... ., . - ,.. - - , : Or i gnorte d `? :. I,- I, .II.. . 1I I , .I. ". _:'' _ . : I. MR. Iya1, R• � _ .. II �-1e��:II ,. �,�, II � ... : 1 ., ... III." .�I lI .. '.-� 7..I. -d�_ �,�I.. --.I, --�:1', , , -,I - 7 ., � I I'. ,-�. .I�, ��II�. ,...-. � � J. I I1 Z , sma to m�:�.that it ,goes <V thout saying a it ,I- :*,.f,..1 ,Ir:,.�1 ,II.. :�I,I. :. -.1. -II:� ,� N. ,,� , � -� i ,,.._ �_, _ :. ;�..I ,. . I _ z- , -_- . LEONA'WH1TE 404 NATIONAL BANK BUILDINGSHORTHAND REPORTER OR 403 EAST. BOWMAN STREET - - SOUTH.BEND; INDIANA PHONEi 4=8141.:8-4407 - - `-. respeet to ,future arrangements, and it i s, and should be, largely Dolit, t:ca1 matter. The city in its governmental capacity, well, here -is William street, within t% memory of you people.. Here was avast amount of traffic com:ing._ nto' Portage Avenue, and when it gat down to Navarre Street it was diverted, there was _no street open to. get darn to the city. Everybody thought there ought to be'a; continuation down into the city, so the quests on _then was, shall we just condegLi right through to the ceh.terl.,of .the city? And in the political capacity the Board ,s-aidIf we do that it is going to 'cost a mint of money.` ..There are,,. streetsthat do` fairly well continue to the center of the city and;which'we can u si n,.� They then decided to take' the=st?eets that` were already: in. When you get � the right-of-way put through, - and the benefits or damages assessed, then comes the questi on of the improveme t , of that street. Than is all taken- t are of by the. law if they decade to improve. MR. ROPER: I tho ught we were not assessing c osts of , impravem nt? MR. MILLER: Yes. TAR.. ROPER: We are not, though. MR. MILLER: Just a minute. I" will get to the point where' you were a. moment, ago, when you to st your patience, if. :you refuse to see the absurdity of saying you are._wt a.ssessang the propertyowners for the cost of the improvements, when _ you simply attempt to include in the condemnation proceedings all the costs of the improvements. MR.;' ROPER: You have changed' your po si tion s inc e the l ast - 14 Let me see a a f T can sal that oipler way. improvements, pays for .the cost of the 3,inprovements of gen r,,a treasury, .and then, proceed to aase.ss benefit awards : agar t3st the : and owrr s, 77---77777 ovv Wait 'a m.3nute Arad tbex� c tr;rants` to, it an. improvement`, makes it, arm as'sease t c©st agaa.ns ab �t land o ne s. -. Now thoss> az'e two 'difPere t th ,1* One. s pass_ bTe un —er :tie law3; and°tbe ..otter s MR, ROPER: + The first:, you say, ,ifi n©t posa. b1.e? r" MR, Nf LaR: -wo- there 'is no pro r s Qn 'for ':the Board Public:. Works ito'; rita re-improveroen�a, and assess; the, prop owners, of course,' tau.>don�t have to give notice `oaf x 'toieowners are, sessed fo.nprovetnt the c ityt s gown- affa3.r: M-R ROPER : r _. ire you clainiing Viers that: the city, �s<<assessxn owners` for the c©s- of Foueme:nt2 MR. MILI;ER certainly youx►e'. You h.sta stated: -r mrw- F kit ROPER; ° I see d .d bay--h t, TY s s' a case s T' are pr©cee in .under 48 2001 N- r mrflndeiidih a:; r fight -of: lki y - ul0 K nt. f'nr stir ri:erhi �ri#�. rots 1,..i- a # k ti - LEONA VILHITE ' ;. +-- 4°4 NAT'°"^` """ B�"°'"°' SHORTHAND REPORTER "<; '� -: Oli'4Q8, EAST BOWMAN BTRE62-' .- - ,;. I. U. BEN., I"DIANA _ ` PF10,"ESf.4 8f 41 8-44dt i xF, - - -s `. =, .. - 'O ,, _ and '! on tb o gh the s a tea. g agaa n,; making anotY er. asse.sst nt and a�ra�d, and then goang nut and try�.rig ta:-get..: your 0 --ents 11 t, I t1�;at again? �'ow damat I am try ng .to get for is 'this,: , _ ,_ Wouldnt t ,:dour,, c7.iets `he better off to knave,' it all determined ,. .;Y ., -- . , . 'ilG - at Qrre ro geed th n ixi two ` with two a s'essents'? end . P. a _. .- , . , a �_ ,. R y, eR y��j .- ': s there a�y , Cc?u , t . lit _ '© ilg t©,. to this BO;ard do the s - _ ,. .:„,lro .. --r things axi: two =proceedings, ;when t1�ey can just as wel;l d fit. 3n one2 ; MR. LEUY;' ' Tlae. thing 3 wba d 1ike to xi�ave:� an steered �.s .th.s `: .. . TTnder 48�2C?OI 3.s the're a ciiffcrenee between the award that . ghoul-d be made hepe hy:; war off` d iages a r bene; . rb inr thg two, cases: First,- the; case There 'condemnation i_s for A. , ing except a legal place ca I' e4 a right of gray, or. i � case rhsre tree i dordemrito'oz� te�xright-of �vay �.mproved Tl� You want' an answer or;;°note = s idlR. LEVY : Yes, I- want .an answer MR.. MILLER: , Or If we are gog to get it to rar�,c3us wa of prcju.ding ,the for asz 1. .improved street for -a Colft t- xf tie re s„ already nb 'i-1.1. �-� , I. an _.existence at. _theep� e mere it s'. desired; the '=f;rst y , step is to get the right of way`ver wh'ch the c©nstruction . of the street =fs to be Thx s proceedg is 'a pr:oceedang :to �, ,� *',,�'r _r r r " - . . ' I I � - _' " ''r r �,'.,�'.�,:. condet- ri aright of -way, Now thp,.f you s impi~ watt to ;'grade _t <� .,� that right of way thsre�sprovrs� on ire thi;sstatut$, wbi ch. °s t ,--,`l"-" , -', C.r.t r � � �� ys=� - , -, , :�` " , t� - _ . 1,11--.,""�'-�"",�.�,�.,-,-,I-r.", "__ � , "� ' ,-r, ,�".,,� , , , �� • EOA WHITE -i _ 404 NATI°NA` BANK 6UIL°'NG SHORTHAND. F EPORTER - OR 408 EAST 80W MAN°STRESF'.. - „ SOUTH'BEND: INDIP.NA _ • • '.:' `- �. IN, ° �.-'PHONES';4 814K,S-4407 IL- 1 - It R..;�I . kq-`IWldhdtatute �. IVlI I R: I the Barrett `°haw statute, There =is .a,p- ' ©ri : 1,,,. -,..,' _.. so that you day proceed1 `a.n a much simpler w'ei than . .- u°.a. _-. , . , 1 . � ..,_ �,..�.!,� .....�,;���1 �:I��.'1�":._�1:��I-_,�I�,0I,ll�--���"I.1..II1..��?."vc-7.�i,��.I,",�I-I-I��I-,,:�,.s.` go xiig to pave the street . , flu ,,can;proceed ix ,part and er t - ",,,_-f_�—,-� , '! , I-__.. I_�'-'-i�1�,,':� '���1 ��, '.". �I '::,e�"�,� ..,'`"� ,�2__;;`_'.� ,_,,,-.r ,,,.-,-'-,I::-�-�:�.,�. ,,-_."1II flla statute, swhich simply wg .v s g9a tYie r, ght .t, grade '" t i. � ,..,,,:.,:...���� `` �,_, ,,' ,`,:., I� '�-: .1-,�, -L1,''.. -����- �_-��I1- :wit. - u, subm tong to` the prfl erty owners the v":ark ous het hods _. 1, '1 � � ,-" .: .',. ._,; _,1�'�� ;'I - =but .' " i c curie s to improving the `street. with any +ino darn im r .": "r -1"�_,, "-- '1,L"��' Z,-:c :-',_-. �:-"; .-��1I . provements, then :the=Board ham' no:: authority .ater:r tc -do . /.. _ rI , _,�� :- ��---. �,I- �_�_:� -:�:��,:I;� that: exe'epty submitta.ng vsrrcrus kinds of �.mprovemeats aid: � . ; �� : ,",� �:I,:,,.1., ,, �.,, �-,_ ��.,. ;the property owners have ;� great deal to say. about. w , oh - ' , � ._' � ,_ ., ,,,: ."-I.� ,','� �.,- :r,O-�1 method wl11 be satisfactory to them. ,,�',-.,I� !�"-I ,-�l ,. � �� "; �, ,�,I-- ,, '�,�, ,I iR: a P 1'�-".1.Iw,� l _ - , l- �`- ,, -- ,� �l,�- -,�.-'I.,.I,�- �_�s. -" �:,"I �,�.: fl11P ' , yo t7 propO,S@ that th,e Board" should p 'fl ce.6d4 here; -I-;�. .�_:.I',-, _-�--., _ 7 '- ., -,,',._ �- .I..�- i having.ra m3xd tY�at,the,'c3ty as goingo pay for tie Grist , . �I�,� �I-�I o f t lae Irrtp rovement? _1 -,�I�I � , . �,' _ ,� �z l l- ':- ' ._,.. �. ..,.�. _:�I1 MR. I I M R: } .: II 1, I:. ..II_, . Theg car da 'very much as :'they' life, if the y a.re g , ang„ - ��Il-� =.. ��,.1::'I1-,::1:. I I.-,_�--,�,��1 .-, to pay for it, I :I , ,rR,_ . " .._..I;,,I- ,�. ;",f1: -,I-1 .I .,_�I. ,' REAPER s 1- . 1 � ,. -. I. :.. . .", -.1',���:;-"`-' :�I-., 4ghat" d fl syo u the n . i s- the proper ways .. _ , 5 _, I . I, . .�� t j IR. MILIIFR, �::X 5 �. :I.-- �� I-1 I",.' I�:. � , . 1I .1-, ,I-_ 'r havens— f-ol.lowed that through caref1111y; > but' I h:ave •, � : I1, 1�-_ x .��.1._.�,,l;.' 1 — zI -� .I.- <l,��.,�, a� ready stated that ,the popety Qvner :has :praeta ca].ly rifltha n . I_�-,',-4-"I I � to, say about :fit. He sloes with'�respect:to the condamn&tlI. - - ,.--�'�4��I _. � I1 � I� .,' ,, ,I� thou.gh the :decision .of Abe Beard i� final "as t©�p�zttu�g ,l,.�-. ,,-..- l - ;r- W- through a strut.; This. board-;�repr se is the gevex'nTren, - ��,1- ,f_�, ,,��� ., ,-4_ ,., � v.� . " ", , ,-" ,, ' :: ., A�_ -�1- ,- --,.I slde=.of Mahe city, {''utu e pol�c�r of tie :%8 with= _._,.'.,,,_:,� '',,-�— , 1. -and`t -��, ":�.�-:-�-.;1_-;� -. - - ' -_ ,-,- _ ,yti- '. ,- Y 4< -ll.�-�-""i�-,�I-',-I�I-�"_—"_,-",�i1:'_�I-,,_ -�7 -,I_�. -I,,-; ,1:-.,,-1"� _-�.-� - -1I -- :l II "1�.,1" --,, _ _ .. .. ._ ....... _ .. _ ... . , e- - . . _.� a ..- �i. - - ... :: £ ._ - .. .: you will _ chi ge the theoretical p rcture you have, . 5 just presenter, 'ins dust one par`txcuXar,` then think 3t. becomes analogo�is,' and that i s this i The ,question, of the h concrete, "forty -foot highway -let us assume that the ha ghwa; was installed when it was obvious : that a thirty-foot` road o. Ordinary surface wou>Id` have sufficed fo.r the r os.es of th, pu P . adjacent ovimer s of the Land . ,, Would not a be P- t , adc -a to " the adjacent land by the fact of the condeinnil- A , not by 'V valu®: of the road `that vas put _ a.xt� but -by the-. au6of the improvement mentioned in _terms of. the izse -:that that` Land we really be used? MR. MILLER: My answer,.f it must be yes ar not, must be now ;Ti law provides i'.or the condemnat3.on of a rfight o.f=ways then improvements ape., to be put in that right!;; �-way; tbe law pr for the assessten:ts of. benefa is snd damages ;forthose-tipro„ ;MR, ROPER: What sdeti:on are you -ta Ding about? Ts Y that -the :Bar Law mprovemerit _ j MR. MILLER less - aborz:t street;; Zmprovemets; but the ;Barr av 44 LEONA WHITE - -- 404 NATIONAL BANK BUILDING, SHORTHAND REPORTER ` - - OR 403 EAST BOWMAN STREET.;- - SOUTHBEND. INDIANA - -:. PHONES :4-3141.:8.4407 can -be assessed, i6and- ghat; the :.rights of those adjoining property owners are--wouldnt t': it be absurd to make a law of that kind `in such detail, if with such a law the Board could just say, will ,just go . on and improve this street.. ourselve .x, and we will assess against the property owners as far as we like for what we . think the benefit to them is,. fob, this improved street" 'ls my question cleaT2 Wouldntt it :be absurd to have ;this law and this Ia-ovision, to lling just what property can be assessed, or stating,what kind of pavement shall be put in:, -or what improvements if_ the city could go right on and putt in any kind; it wanted to, and ay; "Now we are going to tax the benef its to you people." IVIR. LEVY: Z am anxious here to get information. Wha t you said,. in our minds, is very clear. I don't know what the ultimate final cost is, but it was far `in excess of the benefits, we have found on the basis of a report by people in the business. Now sometimes ;when you condemn property you will find that by taking a` piece of land you reduce the `value of the private property owners s land, not only by the amount that was taken but in an:_additional sum; then in another instance, you will find by taking the land you may make it back, to the land owner for the piece taken by giving him an adjoining piece, and increasing its value. Just a, bare right -of, -way: may, gave land more value, merely by the fact of its existene . Then you have this case, where .you have a paved right-4 v�ay and you are condemning. a mans s land 'to lay that, right-of-way.. - - LEONA WHITE 404 NATIONAL BANK BUILDING SHORTHAND AID REPORTER I Lam. OR 403 EAST BOWMAN STREET- - .. J _ _ I 1 1/'1I V REPORTER - SOUTH BEND..INDIANA PHONES 4-3141,. 8-4407 - _ on it, and you are attempting to measure the damage or benefit to the adjoining land -for the pavement, Now there is a benefit merely by tirtue of this condemnation, under this method. Is the benefit, then, to be divided into two parts, one of which may be assessed as a benefit for the bare right-of-4way only 3,iR, MILLER: Yes. Sure. Certainly. I wish you would show rite -- you have been asking for some lair -- I wish you would` show me any authority whatever for assessments against ad- joining landowners in Indiana, for improvements on a street. 11R. ROPER.: I would refer- you to Section 48-503. It gives the city general power to improve. And I would refer you to 48-2001, and the following sectiohs., the sections under which we are proceeding, and I would call your attention to the phrase of that particular section which provides for the Board to make assessments and awards, and in -which the phrase "Work and. proposed evorklt , . are used, and the balance of the phrase in which "right -of --%ay" is not referred to. It seems to me that the Board has very ample power to.make assessments and swards, and on the basis of a street in place. I donut know what you are driving at, Mr. Miller. Do You want two different procedures, and two different assessmen s` Is that what you want`? MR • MILUER. - That is what we will have, but that is not the question involved here, - .. 17 - LEONA WHITE 404 NATIONAL BANK BUILDING SHORTHAND REPORTER - OR 403 EAST BOWMAN STREET - SOUTH-BEND._INDIANA - c • - s PHONESA-8141. 8-4.407:' MR. ROPER (Continuing reading) I'Such. list shall. not , b:e confined to the owners of property along the line of the propcs,ed work, r --- it doesntt say right-of-way--.nbult it shall extend to and affect all property benefited" or injurin zsly affected, It, MR. MILLER The further question between us f Mr Roper, is this: =. You hold that a city may condemn a right: -of -way and improve it in such a manner as it sees fit, and they. assess against adjoining and adjacent property for the whole: expense. MR. ROPER-. I do not take ithy--such: position. It is very unreason Ie for you to say that. MR. MILLER: Then what is your position: MR. ROPER I take the position in this one proceeding, that this Board. can determine the assessments and' awards and the damages, on the basis of a completed street in place, when -- as they do --it is contemplated that the city is going, to pay, t%e cost of the imp rovement. MR.. 171ILIh+ R.: Let..mel see if" I understand you. You hold if the city condemns a right-of-way with a view of paging that right-of-way, then it can MR. ROPER-' Andpays the expense - - VIR. MILLER. You mean pays for it ;in the first place, -- advan.ce the money 1 - LEONA. WHITE AID REPORTER 404 NATIONAL BANK BUILDING SHORTHAND 1�1-"C. OR 403 EAST BOWMAN STREET - I-1HItl. REPORTER SOUTH BEND, INDIANA PHONES 4-8.141. 8-4407 - , _ -. MR. ROPER Yes. Is this your objection? Are you trying to tell_ us that we are not paying the cost of the improvement? If that is the case., then you have raised a different €zuestion Are you claiming we are not payingthe cost bf the ' improvement? Is that your position? MR. 101ILLER Well, you will have to explain .what you mean by f1paying" If you mean you are advancing the money 1-AR . ROPER `Lhe Board is paying for the cost of the pavement and sidewalk on, this tight -of -way., out of funds in the general .treasury -- _ MR. MILLER.:. And proposes` to reimburse itself? MR. ROPER: It proposes not to re .rburse itself, but to assess adjoining land owners and collect from the adjoining .land owner a sum merely representing the benefits to the land by reason of the city having put in place a completed street.. And the appraisers have been sent out to determine the amount of the benefits without any relation to the cost of the improvement whatsoever. Now are you still saying we are tryin to get back the cost of the improvement`?' MLR . MILLER: Yes. 1-1R.. ROPER: We don't seem to have as issue here, IIIR. MILLER: I am trying to get at the issue. Maybe we will have to eliminate one thing at a time. If you are going to assess benefits for improvements against adjacent landowners, the law sets up the method by which that can be done,. and 20 .A LEONA`WHITE 404 NATIONAL BANK BUILDING. - SHORTHAND -.REPORTER OR 408. EAST BOWMAN STREET ... - SOUTH BEND, INDIANA - PHONES 4-2141, 9-4407 - the assessments can be made. R. ROPER Are you contending thatweshould be proceeding urider the Barrett Law provision 10P. lVILLER: If you 'are :going to assess benefits for thus pavement. 1,1R` ROPER: You are contending the Barrett Lair. applies MTP . I4IILLER I contend that for any improvements that are go i.ng to be assessed against the land owners, you would have to proceed under the Barrett Lary. Sofar' as the opening of the right -of -WRY is concerned, that, of course, is not under the Barrett Law. You have a right to proceed and make your assessments, Iu?R. LEVY: Is it not al ear in your, mind - €hat there is. provision in the lave for the opening of the right -of way MR. MILLER: Yes. Now i s this not clear in -.your mind: That it would be mere subterfuge fora Board of Public Works to claim the right to pave a right-of-way and pay for it-- advanoe the money out of the city treasury ---and then when the Fork was through, say, ."IT -here is so much benefit to the adjoining. -land owners as a result of this pavement?" Wovldn *t that be a mere suhterfuge, in view of the fact that we have a statute which. tells us how you can put in improvements, and what the rights of the property owners are? In viev7 of the fact that we have a very definite statute which gives the property € wners very definite rights of selection b-etween the various kinds of improvements, and if the Board can go on and put in any kind of improvement it want, s.-to put in, and. simply charge it • LEONA WHITE 404 NATIONAL BANK BUILDING SHORTHAND REPORTER GfZ. - OR 409 EAST BOWMAN STREET - Jf-1 _ rlF1P1, REPORTER SOUTH SEND..INDIANA - PHONES 4-3141, 3.4407 - up to the land owners isn't that mere subterfuge Don't these two things present absurd siti)ntions to you: That the Board has the right. to side-step all of these provision by simply putting in any kind of improvement it wants to -Put in, and say, "Now 'we have put in improvements and we .are going to charge benefits to you-4`P Then the whole Barr tt Law proceedings is a farce, because the Board doesn it need to pay any attention to the property owners. IVIR LEVY: It seems to me there are tTivo things left here, and one has just occurred to me now. Suppose that the Board had dedided we wart e private roadway, owned by the city out there, to reach our water towers out south here,; and we went ahead and rented the • land there, for a private roadway, and we took that and improved it by paving it. Sub-sequently we decided, because of the groTAth of the city , instead of that being a private roadway for the city., that it should be a public road, and to do that., proceeded to condemn that right-of-way which was previously a private roadvira , and make it a ptEblic roadway, Now we have laid a pavement,. How do; you figure the benefits or damages to the adjoining property Ov ners at that time, when the dondemnation was made2 Do we ignore the: pavement? MR. 11ILLER : Is a part of your proposition that you had the exclusiv use of it? You have rented a strip of land and you have paved it, and the land owners adjoining have no right to go over it? 1aR. LEVY Yes. : It is for our water a er tower s and by the growth. .` LEONA WHITE 404 NATIONAL BANK BUILDING SHORTHAND REPORTER OR. 403 EA3T. BOWMAN STREET SO UTH� BEND. INDIANA -. PHONES. 4-3141. 8-4407 of the community to a point where the Board feels that it shoml now be a public highway, we condemn that as a right -of -via Y E: for a public street,. lTow ire are faced with assessing the benefits and damages to the adjoining property owners. The only quest ion is, should •tine pavement on there, be ignored ` or considered MR. MULLER I cant answer the question': of emiree x it en*t analogo s here. This. is a eondernation of right-of:,�ray without anything on it, and the ;improvements were put on afterwards , and then" an attempt made to assese.benefi s ;for the improved right--of-way on the land. I think if you will read..the statutet carefully and most careuZly the' part that:<reTtes to grading and sid6wa1R s I think it will throws a good de4 of li-ght orb the .rig? is o ' the Board in regard: to that. i'R. LEVY: One more hypothetical case. Suppose there is a series of land ownerst and one of the land owners has a factory., and he rents $ private strip of land for his use, and he paves. it, and uses it for a few years. Then the community grows up here, and the city says:, " �°Te are going to condemn the right-of-vrxy." And it :pgar that the city^desires the exact spot. which this man. has,' and it is faced with assessing damages and'benefits as to theindividual who put it in, and as to the n_,erswho didn't pay for the pavement. M. M.ILLER This thing is clarifying. In the first place, I canft concieye of t ; he city putting in a pavemen without 'havin J - LEONA WHITE 404 NATIONAL BANK. BUILDING .SHORTHAND' REPORTER _ OR 403 EAST BOWMAN STREET -.. SOUTH BEND, INDIANA - - - PHONES 4-3141,.3-4407 - - some sort of an agreement with the land anal owners. SIR, LEVY I am trying to ask questions that will clarify this. In both of my hypothetical cases, let us assume that the Land owner.: on one side of the road is the same man who o-Txns the factory, and it waSL a strip at the edge of his land that was taken for a roadway. The one built by the city is put through. The other, built for private individuals, is publicly used, and so far as 1-am concerned, there can be almost any terms in the agreement, but not any agreement of any kind with the abutting land owners;, as to the assessments for benefits and damages in connection with the abutting land owners who did not own.the lard upon which the pavement lay, and who were not parties to any agreement, would the pavement be considered or ignored? %T2. 11LILLER ; I rather expect that the damages to -the land owners . who had this paved right-of-way-- I fancy that the damages to Us land would have to be increased by whatever value this pavement had., because you were taking away a particular strip of land that had a decided value, and I suspect the other ?pan would have to stand his share of the damages, because you were taking away a particular thing, and it could not be removed, MR. LEVY: The thing would be used, MR. MILLER: I suspect it would have to be charged up as agains this radii, 1IR. LEVY: 'What .would happen: to the abutting land owners who s _ 24 ` I LEO,NA WHITE 404 NATIONAL BANK B°"°'"G SHORTHAND REPORTER - OR 403 EAST BOWMAN STREET - - - - - - - -• - SOUTH BEND. INDIANA PHONE$ 4-3141. 3.4407 didnft oven,. but nova did'have the right to use the highway; in, the determination .of benefits or damages to them? the fact of the pavemnt- be corsidored or, ignored? 11JR. MILLER I don- It thine it would have to be Considered that they would have.- to, 'make up y what..this man lost. Isuppose his damages would have to be enhanced by this other man. MR. LvV4: And you wou.'J '. consider in the .condemnation that the thing the City was getting was the bare legal thing called a right-ofvray 11R. MILLER No. It would be whatever the right-df-way was. You could undoubtedly condemn a private street, or' private , right - of way, and make it a public street. I suppose there is pleat of law on such as to how the damages and benefit a should : be assessed. Im. LEVY: VbUld it make any difference if it had been.astreet',', rather than a right. -of -way? Is there any difference bet ,re en the first and second hypothetical cases I have asked about? 111R. MILLER: Where the City had purchased the right -of may? MR. LEVY: Yes. Y hu . MILLER No, except I think the city is the loter. It Would have the right to Claim damages for 'claiing the right -of way. It Mould have to claim dam-a.gea against itself for.taping stymy something that belonged to it. R.. LEVY.- could the. . abutting property owners have their damag s -- 2 5` • LEONA WHITE " 404 NATIONAL BANK -BUILDING`. SHORTHAND ,REPORTER OR 403 EA5.'f BOWMAN$TRtET - _ SOUTH:BE'N D. INDIANA - - _.;,,: PHONE$. 4-9141. 3-4407 %. severall be en etc. It goes ahead azxd:provides that the Barrett.Law Y statute vd_ th _reference to the payment for street improvement assessments shall apply. Then , '"in Sec. 48-2009 2 entitled , "'Damages 'aid By City: W,e fln'd this Language. - "Said Soard shall hate the power to determine what part of the damages, awarded shall _be paid out of the "funds- appropriated for the use, of such Board y the Oommon .CoUn.ei? , providing that not more than �2 x000.4 in demage8 shall be paid out of the city funds for all improvem nt "'fir onde nati one unless pursuant to orders appropriating for:a . y specificImprovement or condemnation.'T ' Also., in the following section, 48-- 0 0 entit't ed _ "Certificates for =damages'T1. these is the further -use of the word "i_mpro vement s .' MR. LL7Y: Suppove we do th s : I would like to talk this over with Clyde Williams -and to some extent with Mr. Longfield. fe will try _to reach.a decision for Monday mowing at 10 o'clock. If, as the result of the discussion here today either of you desire .to ,submit any further Material, if we could have it by Friday morning we would , appreciate it. That would give us Saturday to discuss it. Meeting adjourned. LEONA WHITE 404 NATIONn1 BANK BUILDING SHORTHAND REPORTER OR 403 EAST BOWMAN STREET - - SOUTH BEND. INDIANA: ..PHONES 4-3141. 3-4407 or benefits assessed on the basis of a pavement, or just. the le gal ri ght o -wgy My :-guess is where there ''is a pavement in and that,, is condemned, and:'that is a pu.blic,benefit,t.o the people adjoining there --my guessis that the lair wo-.ld,,permit the assessment of benefits for that opening, to this other land. But those cases are, hot analogous to this case. The difference in this case is simply the fact that. there are two differences. First:, there was no primate right- of-wdy previous. to the. condemnation; and: second.- the pavement instead of 'being laid on the ground, was merely in the form of a binding contrast.. And the difference in the legal aspec t of the:IT- atter-. the law says there is. a spe cial gray it-shotld be 'done , IffR ROPER: May I make a few comments? I find. .in reading through the eminent domaine statute . for "cities of second clash, . (48-2001) that there are references .I could have made to 'the Board, and I did. not. Section 103, of 48-Z007, that section is entitled "assessment liens: It says, "On the completion { of such assessment roll by the Board, the seine shall be deliver ad";. to the Department of. Finance,, and from them the respective amounts therein assessed, or when a lot or' parcel of 'land- has: sustained bath benefits and damages, because of,: or -on ac.coun- of any, improvement-. set; forth in said assessment roll any:. exces if an.y of benefits assessed; or damages`,- or' awards, sham