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as hereinafter provided. They may cause buildings, structures, and other things in the way of any streets or other public improvement to be taken down, removed, and appropriated, upon the payment of damages as hereinafter provided. And no person residing in said town shall be compelled to work on any road or highway without the corporate limits of said town. And the Board of Trustees may exercise all the powers given to Township Trustees in regard to highways in their respective towns; and the Marshal, under the direction of the Board of Trustees, may perform all the duties and exercise all the powers of Road Supervisors in reference to a road labor tax, not to exceed two days in each year, by each person liable to work on roads in townships, and shall be governed by the same rules and regulations in reference to the collections and enforcement of the same; and any person so liable to work may be discharged therefrom on the payment of one dolÎar and fifty cents per diem: Provided, That the Board of Trustees may, by general ordinance, prescribe the time within which and the manner in which such labor shall be performed.

1. It is the duty of a town to keep its public streets and alleys in safe condition for ordinary modes of travel.-Centreville v. Woods, 57 Ind. 192.

2. The Board of County Commissioners have no power to open a highway within the limits of an incorporated town, without the consent of the Town Trustees.-Sparling v. Dwenger, 60 Ind. 72.

[1897 S., p. 272. In force March 8, 1897.]

3367a. Streets and alleys Trustees' powers. 1. That the Boards of Trustees for incorporated towns within said State shall have the same powers and rights for the purpose of opening or improving streets and alleys within such towns and to condemn and appropriate lands owned by any person, company or corporation which lands are then in use for public purposes the same as they now have the right to condemn lands where the same are used or held for private purposes: Provided, That upon the condemnation of such lands the owners thereof shall be awarded damages therefor the same as an individual or corporation would be if such lands were used or held for private purposes.

[1869 S., p. 33. In force April 27, 1869.]

3368. Opening streets. 2. When, upon petition signed by twelve freeholders, residents of any town, the Board of Trustees of such town may be of the opinion that public convenience requires the opening of a new street or alley, or widening or narrowing of a street or alley already opened, the Board of Trustees shall appoint three Commissioners, residents of said town, who shall be disinterested freeholders, to appraise and assess the damages and benefits accruing to the owner of any land or lot through which any street or alley is proposed to be constructed or altered, or any building or structure thereon appropriated, as provided in the preceding section. Such Commissioners shall, before they proceed to perform their duties as said appraisers, take and subscribe an oath or affirmation faithfully to perform their duties as such appraisers; which shall be indorsed upon or attached to their appointment, and filed with the Clerk of the Board. Twenty days' notice shall be given such Commissioners by the Board of Trustees, through the Town Clerk, of the appraisement to be made, giving a complete description of the premises to be viewed. A like notice shall be given by personal service, or by leaving the same with some person of suitable age at their reputed place of abode, to each of the owners or agents of lots or lands upon or through which the public improvement or street or alley is proposed to be made. If the owners are unknown or non-residents, publication of the same in one or more newspapers of the town, or by posting up written notices in six public places in the town (if there be no newspaper published therein), for three weeks, shall be deemed equivalent to such personal service.

3369. Duty of Commissioners. 3. Such Commissioners, or a majority of them, shall, at the place and time indicated in such notice, proceed to an examination of the real estate proposed to be appropriated as aforesaid, and shall then and there estimate, first, the value of the land or other property to be appropriated for such improvement; second, what real estate, if any, would be benefited by the improvement, specifying the same in par

cels, with the name of the owner if known, and the proportion of benefits each owner receives, and the proportion of damages each would sustain. They shall view the premises, and receive any evidence touching the ques tion before them; and may, for that purpose, administer oaths to witnesses examined in relation thereto. They shall report on each of the specifica tions above indicated, and, within ten days thereafter, file the same with the Clerk of the Board of Trustees.

3370. Tender of damages. 4. When such report is filed, as in the preceding section required, the Board of Trustees, if it accept the terms of the same, shall direct the Treasurer of the town to tender the owner or owners of such real estate, or their heirs or representatives, the damages awarded by such Commissioners, deducting the amount of benefits assessed to such owner or owners; or if not found within the town, or the award is not accepted, then the sum shall be kept by the Treasurer as a special deposit, subject to the order of such owner, or his heirs or representatives.

3371. Assessment-Collection. 5. If the Board of Trustees, within twenty days after the filing of said report, by a vote of a majority of the members, determine to make the appropriation of real estate for such improvement, it shall cause an assessment-list to be made, by transcribing so much of the report, as aforesaid, as describes the parcels of real estate to be benefited by the opening or improvement, with the name of the owner, if known, and the amount of benefits which each would receive, thereby directing such amount to be assessed upon such parcels of real estate respectively; which assessment shall be a lien on such real estate. The Board of Trustees may, immediately after making such assessment, by suit in any Court of competent jurisdiction, in the name of such corporation, recover against the owners of such parcels of real estate the amount of such assess ment; and upon execution against the property of said defendant upon such judgment, the same shall be sold for cash without regard to valuation or appraisement laws of this State.

3372. Action on report-Appeal. 6. The Board of Trustees shall, within twenty days from the filing of said report, either accept or reject the terms of the same. And any owner of land or representative thereof, aggrieved by such report, may appeal therefrom at any time, within thirty days after the filing thereof, to any Court having jurisdiction of the same, upon filing the usual bond with the Clerk of said town for the payment of costs. But no such appeal shall prevent any such town from proceeding with said appropriation and improvement as if no appeal had been taken. No other question shall be determined than the regularity of the proceeding in the suit and the amount of damages sustained.

3373. Infants and insane. 7. When the owner of any such land or building, appropriated as aforesaid, shall be an infant or of unsound mind, no proceeding shall be had affecting the rights of such persons until a guardian therefor shall be appointed by the Court having probate jurisdiction, and such guardian shall have given security to the satisfaction of such Court for the faithful performance of the trust; but any proceeding affecting such rights shall only be void to that extent.

[1 R. S. 1852, p. 493. In force May 6, 1853.]

3374. Record of plats. 1. Any person who may hereafter lay off any town, or addition thereto, in this State, shall, previous to the sale of any lots in such town, cause to be recorded in the Recorder's office of the county

wherein the same may lie, a correct copy of the plat of said town, with the public grounds, streets, lanes, and alleys, with their respective widths properly marked, the lots regularly numbered, and the size of the lots marked by reference to the plat.

1. In order to show the dedication of private property to the public use by user, there must have been a user by the public adverse and exclusive to that of the owner.-Talbot v. Grace, 30 Ind. 389.

2. The making and dedication of streets, lanes, and alleys on a town plat gives to the public only an easement therein; the fee simple remains in the proprietor.- Cox v. R. R. Co., 48 Ind.

178.

[1885 S., p. 150. In force July 18, 1885.]

3374a. Plat of addition-Proceeding before record.

I. Here

after, whenever any lands are platted for the purpose of being attached to any city or incorporated town as an addition thereto, a plat of such addition shall be submitted to the Common Council of such city or Board of Trustees of such town before the same is placed on record, and such Council or Board of Trustees may require that the streets and alleys of such addition shall be made to correspond in width, and be coterminous with the streets and alleys of that part of the city or town which it adjoins.

3374b. Violation of act-Penalty. 2. Any person violating the provisions of section one (1) of this act shall be fined in any sum not to exceed the sum of twenty-five dollars.

[1 R. S. 1872, p. 493. In force May 6, 1853.]

3375. Donation by plat. 2. Every donation or grant to the public, or to any individual, religious society, corporation, or body politic, noted as such on the plat of the town wherein such donation or grant may have been made, shall be considered a general warranty to the said donee or grantee for the purposes intended by the donor or grantor.

[1881, p. 56. In force March 3, 1881.]

3376. Plat, how acknowledged. 3. The person desiring to lay off such lots, before offering such plat for record, shall acknowledge the same before some officer authorized by law to take and certify the acknowledgment of deeds in the proper county; a certificate of which acknowledgment shall be, by the officer taking the same, annexed to such plat or other paper, and recorded therewith.

[1895 S., p. 382. In force March 15, 1895.]

3376a. Legalizing plats, etc. 1. All plats of additions to cities. and towns and of subdivisions of sections which have heretofore been recorded in the recorder's office of any county without the owner or owners thereof having signed the same or without having the execution thereof acknowledged and certified as required by law, but under which lands and lots have been sold or conveyed, or where such additions or subdivisions have been entered upon the tax duplicate for the purposes of taxation in accordance with the descriptions contained in such plats, are hereby legalized and declared valid to all intents and purposes from the date of the recording of such plats, to the same extent as if the same had been duly signed and the execution thereof had been duly acknowledged and certified before they were recorded.

[1 R. S. 1852, p. 493. In force May 6, 1853.]

3377. Penalty. 4. Every person who may lay off any town, or any addition to any town, in this State, and fail to comply with the requisition of this act, shall forfeit and pay, for the use of said town, for

every month, a sum not exceeding one hundred dollars nor less than five dollars, to be recovered in the name of the Treasurer of the county.

3378. Imperfect plat. 5. Where any town plat, heretofore or hereafter to be recorded, does not clearly describe the size of the lots, streets, alleys, and courses of the lines of said town, and where donations have been given or intended to be given, either to the public or to individuals, or to any religious society, and it has been neglected to insert the same on said plat, any of the proprietors of such town are hereby required to make out such other description as will more clearly explain the true intent; which shall be acknowledged, certified, and recorded as required in this act.

[1901 S., p. 124. Approved March 7, 1901.]

3378a. Vacation of streets, etc. 1. That the Board of Trustees of the towns of this State shall have power to vacate streets, alleys, highways, lots and additions and any part or parts of either thereof within their respective towns whenever they may deem such vacation expedient for the public interests. Whenever a petition shall be presented by three reputable freeholders of such town praying for such vacation, the Board of Trustees shall, if they deem reference thereof expedient, refer such petition and the matters pertaining thereto to three commissioners appointed by such board, who shall be disinterested freeholders of such town, and who shall, before proceeding to discharge their duties as such commissioners, take and subscribe an oath or affirmation faithfully to perform their duties as such commissioners, which oath or affirmation shall be indorsed on or attached to their appointment and filed with the clerk of such board. Such board shall in its discretion fix the time and place when and where such commissioners shall meet. The persons praying for such vacation shall serve notice of the proposed presentation to said board of said petition by personal service or by leaving copy at the residences of persons interested, or by publication if such person be a nonresident or his residence is unknown, once in each week for three weeks in a newspaper of general circulation, published in said city, and shall show, by affidavit, due service of such notice. The said petitioners shall accompany their petition with a map or plat of the street, alley, highway, square or addition, or the part or parts thereof which they propose to have vacated; and shall, on said map or plat, show the surrounding locality; and shall also state the reasons upon which they base their petition for vacation. All the expense of such proceedings shall be paid by said petitioners, unless the Board of Trustees shall otherwise direct.

3378b. Sessions of board. 2. The said commissioners shall meet pursuant to such notice, and shall examine witnesses and hear evidence, and may administer oaths, and adjourn from time to time. They shall view the street, Alley, highway, lot, addition or part thereof proposed to be vacated, and shall deterinine what persons, if any, will be benefited thereby; and shall assess such benefits, if any: Provided, That only sufficient benefits shall be assessed to pay all the costs and expenses of such vacation proceedings. In case any property owner immediately upon the line of said street, alley, highway, lot, part of lot, addition or part thereof, sought to be vacated, who is directly interested therein, shall object to such vacation, the commissioners shall report such fact to the said board. If the commissioners should consider that the necessary or proper parties have not been brought before them, they may require the petitioners to notify each person or persons as they may deem entitled to notice.

3378c. Report of commissioners.

3. Within ten days after their determination, such commissioners shall file in the office of the Town Clerk, who shall transmit the same to the Board of Trustees, a report in writing, stating therein:

First. The length, width and location of the street, alley, highway, lot, addition or part thereof proposed to be vacated.

Second. The value of the land upon which such street, alley, highway, lot, addition or part thereof is situated.

Third. The benefits to the persons desiring the vacation.

Fourth. The names of property owners or persons who may object to the vacation of such street, alley, highway, lot, addition or part thereof, and the nature of their interest therein.

3378d. Action of Town Board Payment of benefits. 4. The Town Board shall either refer the report back to the commissioners, or accept or reject the report, within twenty-eight days after it is made to them. If they accept such report they shall require the person against whom benefits are assessed to pay the same into the town treasury within twenty days thereafter. The Town Board shall have no power to order the vacation of any street, alley or highway when objected to by property owners adjacent thereto, or in case of the vacation of an addition the owner of any lot or part of lot therein objects. No person shall have any power or right to make any private use of any street, alley, highway, lot, addition or part thereof, ordered to be vacated, until the benefits assessed have been fully and entirely paid; and unless paid within the time limited the proceedings shall be wholly void.

3378e. Description recorded. 5. Upon the vacation of any platted street or addition, as herein provided for, the trustees of such town shall, as soon as the same has been made, cause a specific description of such vacated street or addition to be recorded in the office of the recorder in such county after the same has been duly transferred in the auditor's office.

[1857, p. 126. In force August 24, 1857.]

3379. Vacation. 6. Whenever any person or corporation interested. in any incorporated town, or in any real estate in this State, laid out in streets and lots as a town, may desire to vacate any lot, street, alley, common, public square, or part thereof, in such town or plat of town, such person or corporation may petition the Board of County Commissioners of the proper county, giving a distinct description of the property to be vacated and the names of the persons to be affected thereby; which petition shall be filed with the County Auditor thirty days previous to the sitting of such board; and notice of the pendency of said petition shall be given, for the same space of time, in a public newspaper printed in said county, if any there be, and by written notices thereof set up in three public places near the lots, streets, alleys, common or square proposed to be vacated.

3361. Driving on sidewalk. A bicycle is a vehicle within the meaning of this statute, and its use upon a public sidewalk is unlawful. Wherefore, its rider is liable for an injury, by reason of such use and its propulsion, inflicted on a pedestrian, although the act of collision be unintentional. So, one who, riding a bicycle on a public sidewalk, rudely and in such a reckless manner as to show a disregard of consequences, collides with a footman standing on such sidewalk, is liable as for an assault and battery, the intent being implied.- Mercer v. Corbin, 117-454.

3364-6. Street improvement. Although sidewalks are not specially mentioned in this act, of 1869, a street may be improved to its full width under it, since the term "street" includes sidewalks, in the absence of language in association with the term restricting its meaning.- Wiles v. Hoss, 114-378.

·

3366. Cost, how collected. A question as to whether or not there was a proper advertisement for bids is a question of fact which arose prior to the making of the contract" for the improvement of the street; under this section it is not triable in an action to enforce an assessment.- Wiles v. Hoss, 114-380.

3367. Power over streets, bridges, etc. The acts of a property owner, who improves a sidewalk under an ordinance of a town passed in pursuance of this section, can not be deemed the acts of the town in such a sense as to charge the town with his negligence. In order to charge the corporation, in such case, evidence of the negligence of the property owner must be supplemented by evidence that the town authorities were negligent or that the work directed to be done was intrinsically dangerous. Wherefore, in an an action against a town to recover for an injury sustained by falling, in the night time, in to an excavation in a sidewalk,

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