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CATIONS

8657-8665), operates to diminish the amount of to be elicited from the excluded testimony of recovery rather than defeat the action, were cor a physician concerning statements made by the rect in principle, although incomplete, the de- | plaintiff, comment on the failure to call such fendant should have requested a more specific representatives as witnesses at the trial was charge in order to make the error, if any, avail- within the scope of legitimate argument of counable.

sel. [Ed. Note.-For other cases, see Appeal and (Ed. Note.-For other cases, see Trial, Cent. Error, Dec. Dig. Om 216(2); Trial, Cent. Dig. Dig. $ 299; Dec. Dig. Om 122.] $ 628.)

Lairy, C. J., dissenting. 4. WITNESSES 223–PRIVILEGED COMMUNICATIONS-PROVINCE OF COURT.

Appeal from Circuit Court, Shelby County ; It was within the province of the court to Alonzo Blair, Judge. determine from the entire examination of a physician and from other relevant evidence

Action by Carl Gross against the Cincinwhether the relation of physician and patient nati, Hamilton & Dayton Railroad Company. existed between the witness and the plaintiff at Judgment for plaintiff, and defendant apthe time of alleged statements made by defend- peals. Transferred from Appellate Court ant in the presence of the witness. (Ed. Note.-For other cases, see Witnesses,

under section 1394, Burns' Ann. St. 1914. AfCent. Dig. 787; Dec. Dig. 223.)

firmed. 5. WITNESSES 223—PRIVILEGED COMMUNI

For opinion of Appellate Court, see 111 N. EVIDENCE – SUFFICIENCY-STAT. E. 653. UTE. Evidence held to show that the relation of

J. W. Fesler, Harvey J. Elam, and Howard physician and patient existed between a wit S. Young, all of Indianapolis, for appellant. ness and plaintiff at the time alleged state- Little & Little, of Indianapolis, and Wray & ments were made by the plaintiff in the pres- Campbell, of Shelbyville, for appellee. ence of the witness.

(Ed. Note.-For other cases, see Witnesses, Cent. Dig. $ 787; Dec. Dig. Om 223.)

SPENCER, J. [1] Appeal from a judg6. WITNESSES 212–PRIVILEGED COMMUNI. ment for $3,000 recovered by appellee on acCATIONS-PHYSICIANS-STATUTE-CONSTRUC- count of personal injuries sustained by him TION.

while in the employ of appellant as a railBurns' Ann. St. 1914, 8 520, providing that

road brakeman. physicians shall not be competent witnesses as

The only error assigned to matters communicated to them as such by challenges the ruling of the circuit court in patients in the course of their professional busi- denying appellant's motion for a new trial, ness or advice given in such cases, covers a and under this assignment certain instrucbroader field than is indicated by the literal meaning of the words employed, and renders the tions given and refused are first questioned. physician incompetent to disclose information Instruction No. 1, given by the court on its acquired by him while attending a patient in a own motion, sets out, in substance, the alprofessional capacity, and includes all that he legations of appellee's complaint, and was observes while so acting as to matters communicated by the patient.

followed by instruction No. 2 which, in ef[Ed. Note.-For_other cases, see Witnesses, fect, told the jury that if appellee should Cent. Dig. 774; Dec. Dig. Om 212.]

prove all the material averments of his plead- . 7. WITNESSES Ow214_PRIVILEGED COMMUNI. ing by a fair preponderance of the evidence. CATIONS-PHYSICIANS-ADMISSIBILITY.

he would be entitled to a verdict. The suf: In view of Burns' Ann. St. 1914, $ 520, where a witness in his capacity as physician im- ficiency of this instruction as a matter of mediately before and after an interview with law is here challenged by appellant on the the plaintiff represented both parties, his tes- theory that the allegations of appellee's comtimony as to statements made by the plaintiff to plaint, to which the instruction refers, do other persons present at the interview properly excluded.

not state a cause of action. A similar objec[Ed. Note.-For other cases, see Witnesses, tion is made to No. 6 of the court's instrucCent. Dig. § 776; Dec. Dig. 214.]

tions. To meet these objections appellee calls 8. EVIDENCE On 123(3) — RES GESTÆ - PBOV- attention to the fact that the sufficiency of INCE OF TRIAL COURT.

his complaint was not tested in the trial court Whether statements of the conductor and rear brakeman, made to each other in the ca- | by demurrer, and contends that appellant has boose of the freight train immediately following thus waived any defects in the pleading, and the collision, concerning a switch which had in instructions which are based on the allegabeen left open and caused the wreck, were a tions thereof. This position finds express part of the res gestæ was for the trial court to determine under all the circumstances.

support in the case of Dunham v. Jones, 184 [Ed. Note.--For other cases, see Evidence, Ind. 46, 48, 110 N. E. 203, 204, where it is Cent. Dig. & 354; Dec. Dig. Om 123(3).] held that by failing to demur to a complaint, 9. WITNESSES C214-PRIVILEGED COMMUNI- the defendant waives a consideration of its

sutficiency to state a cause of action, and In a railroad servant's action for injuries, cannot thereafter predicate error in the givrepresentatives of the defendant, who were not physicians, were competent to testify as to any ing of an instruction which authorizes a ver. statements made by plaintiff to them when they dict on proof of the material allegations of visited him at the hospital.

the pleading. To hold otherwise would tend [Ed. Note.--For other cases, see Witnesses, materially to weaken the force of the amendCent. Dig. $ 776; Dec. Dig. Om 214.]

ment to the demurrer statute, as made by the 10. TRIAL 122-ARGUMENT OF COUNSEL.

Where other representatives of the defend. General Assembly of 1911 (Acts 1911, p. 415, ant were in possession of all the facts sought I $ 2), and permit an indirect attack on a plead

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was

CATIONS.

ing after the complaining party has waived, advised as to purpose of taking him to the his right to attack the same directly and waiting room. The witness was then asked: waited the outcome of the trial. We hold, “What did Mr. Cross say at that time?" Aptherefore, that the error, if any, in instruc- pellee objected to this question on the ground tions 2 and 6, given by the court on its own that it called for a privileged communication, motion, has been waived.

and the court sustained the objection. In [2] The objections urged as to the giving response to further questioning by counsel for and refusal of other instructions rest: First, appellant, witness testified that on the ocon appellant's contention that the trial court casion of the interview with White and Vorerroneously construed appellee's complaint hees he did not attend appellee as a physias being predicated on the federal Employers' cian, but went to the hospital for two reasons, Liability Act; and, second, on its further one, to make sure that they were allowed to contention that some of these instructions do see appellee, and the other to see that the not fully state the effect of contributory neg- injured man was given proper treatment in ligence on the right to a recovery under that his removal to and from the waiting room; law. We need not review in detail the al- that witness did not participate in the conlegations of the complaint. There can be no versation with White and Vorhees. Witness doubt that it is fairly open to the construc- was again asked to state what appellee said, tion placed on it by the trial court, and that and the objection to the question was susconstruction will be adopted on appeal, even tained. though it should appear that the pleading is [4-7] In support of its contention that these open to another and equally reasonable in- rulings of the trial court were erroneous apterpretation. Gilchrist v. Hatch, 183 Ind. 371, pellant earnestly insists that at the time of 381, 106 N. E. 694.

the interview in question Dr. Ossenbach was [3] The instructions which applied the stat- not acting in his professional capacity. While utory rule that contributory negligence, under it is true that in his preliminary examination the federal act, operates to diminish the the doctor stated that he was not so acting, amount of recovery rather than to defeat the it was within the province of the court to de action were correct in principle (Norfolk, etc., termine, from the entire examination of the R. Co., v. Earnest, 229 U. S. 114, 120, 33 Sup. witness and from other relevant evidence, Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172), whether the relation of physician and patient and, if incomplete, appellant should have re-existed at the time, and its decision on the quested a more specific charge in order to question is, in this case, fairly supported by make the error, if any, available (Dunbam v. the evidence. Chicago, etc., R. Co. v. SchenJones, 184 Ind. 46, 49, 110 N. E. 203).

kel, 57 Ind. App. 175, 188, 104 N. E. 50. More. Certain objections are also made as to the over, the witness, both immediately before exclusion of evidence offered by appellant. and after the interview, at least, represented It appeared from evidence introduced on each of the parties whose interests here con. behalf of appellee that, following the acci-flict. Under such circumstances it was pecul. dent, he was brought to the Deaconess Hos- iarly within the province of the trial court, pital at Indianapolis, and an operation was in passing on the admissibility of evidence, there performed to relieve his injuries; that to determine what weight should be given to for three or four days after the operation he preliminary statements of the witness. Our was in a very weakened condition, and at statute (section 520, Burns 1914), provides times semiconscious; that he was attended that physicians shall not be competent witby Drs. Truitt and Ossenbach, the latter of nesses “as to matter communicated to them, whom called twice each day for the first two as such, by patients, in the course of their or three days. Dr. Ossenbach was called to professional business, or advice given in such the witness stand by appellant, and testified cases." This enactment has consistently been that he had been in the employ of the com- construed by this court as covering a broadpany as a surgeon for about 15 years; that er field than is indicated by the literal meanafter the accident in which appellee was in- ing of the words employed, and, so construed, jured he directed the hospital nurses not to it renders the physician incompetent to disadmit any one into appellee's presence ex- close information acquired by him while atcept at the direction of the witness; that he tending a patient in a professional capacity. visited appellee occasionally during his stay This includes all that he sees or observes, in the hospital and after his return to his while so acting, as to matters communicated home, and gave directions as to the care of by the patient. Towles v. McCurdy, 163 Ind. the injured man and the administration of 12, 14, 71 N. E. 129. The rule, which is a medicine; that on the first or second evening beneficent one, is not to be lightly broken after the accident witness made an arrange-down (Nordyke & Marmon Co. v. Whitehead, ment with White and Vorhees, representa. 183 Ind. 7, 14, 106 N. E. 867), and we hold tives of appellant, to visit and interview ap- that the offered evidence was properly expellee in the waiting room of the hospital;cluded. that appellee, at witness' direction, was wheel [8] At the time of the collision, the conduce ed into the waiting room and there question- tor and rear brakeman of the freight train ed by White and Vorhees concerning the on which appellee was employed were in the

show by each of them as witnesses certain plied with the provisions of Burns' Ann. St. statements which they had made to each 1914, § 8700, in the vacation of public streets. other immediately following the collision and

[Ed. Note. For other cases, see Evidence, concerning a switch which, it developed, had Cent. Dig. § 105; Dec. Dig. 83(2).] been left open and caused the wreck. The 3. CONSTITUTIONAL LAW M305—“DUE PRO

CESS OF LAW." admissibility of most of these declarations

“Due process of law" within the meaning of was at least doubtful under the rule against the Fourteenth Amendment to the federal Conhearsay evidence, and, at best, they could stitution requires only that notice in some form be received only as a part of the res gestæ. be heard before some tribunal, and it is within

shall be provided and an opportunity given to Whether they might be so considered was the power of the Legislature to prescribe the peculiarly for the trial court to determine kind of notice and the tribunal. under all the circumstances in issue, and the [Ed. Note.-For other cases, see Constitutionrecord fully sustains its decision. Ohio, etc., al Law, Cent. Dig. 88 925–927; Dec. Dig.

305. R. Co. v. Stein, 133 Ind. 243, 31 N. E. 180, 32

For other definitions, see Words and Phrases, N. E. 831, 19 L. R. A. 733; Pittsburgh, etc., First and Second Series, Due Process of Law.) R. Co. v. Haislup, 39 Ind. App. 394, 397, 79 4. CONSTITUTIONAL LAW @ 309(1)-DUE PRON. E. 1035, and authorities cited.

CESS-STREET VACATION PROCEEDINGS. (9, 10) During his opening argument for ap- ficient notice in street vacation proceedings

In determining the question of whether sufpellee Mr. Campbell, in referring to the inter- amounting to "due process” has been given, the view at the hospital, called attention to the courts may look to the object to be accomplished fact that Messrs. White and Vorhees were and the limits within which the hearing may be present as representatives of appellant and confined in each particular case. wrote down what was said. This was follow- al Law, Cent. Dig. && 929, 930; Dec. Dig.

(Ed. Note.-For other cases, see Constitutioned by the statement, "Why didn't the defend- 309(1).] ant have Mr. Vorhees and Mr. White here to 5. CONSTITUTIONAL LAW m 306 — DUE PROtestify? Appellant objected to the state CESS-STREET VACATION PROCEEDINGS. ment, and moved to discharge the jury. This Burns' Ann. St. 1914, § 8700, providing for motion was overruled, but the court ad- vacation of public streets, giving notice to per

sons interested and an appeal from decisions of monished Mr. Campbell to confine his argu- -the board of public works, held to be within the 'ment to the evidence given, and directed requirements of the Fourteenth Amendment rethe jury to disregard the statement. White quiring due process of law. and Vorhees, were competent witnesses as to al Law, Cent. Dig. 88 928, 936, 939, 942–946,

[Ed. Note.-For other cases, see Constitutionany statements made by appellee to them 948, 949; Dec. Dig. Om 306.] (Indiana Union Traction Co. v. Thomas, 44

6. DUINENT DOMAIN m71-TAKING PROPERInd. App. 468. 475, 88 N. E. 356), and, as

TY WITHOUT COMPENSATION STREET VACAagents of appellant, they were in possession TION PROCEEDINGS. of all the facts sought to be elicited from the Burns' Ann. St. 1914, § 8700, providing for excluded testimony of Dr. Ossenbach. Com- Bill of Rights, $ 21, providing that property

street vacation proceedings, held not contrary to ment on the failure to call them as witnesses shall not be taken by law without just compenat the trial was therefore within the scope sation. of legitimate argument, and the ruling of the (Ed. Note.-For other cases, see Eminent Docourt on appellant's objection was

main, Cent. Dig. $$ 180-187; Dec. Dig. Om71.) favorable than it had a right to expect.

7. EMINENT DOMAIN 100(6)-STREET VACAOther matters suggested have received

TION PROCEEDINGS-DAMAGES.

In street vacation proceedings in this state careful consideration, but they present no re it is not the law that property owners whose versible error and are not of sufficient im- lands do not abut on the portion of street vaportance to warrant an extension of this opin- cated are not entitled to damages, and where

the vacation left appellant's property abutting ion with their treatment in detail.

on a cul-de-sac, he was entitled to damages Judgment affirmed.

therefor.

(Ed. Note._For other cases, see Eminent DoLAIRY, C. J., dissents.

main, Cent. Dig. § 267; Dec. Dig. Om 100(6).]

8. EMINENT DOMAIN 238(2)—APPEAL FROM (186 Ind. 455)

VACATION PROCEEDINGS. FALENDER v. ATKINS et al. (No. 23009.) * | board of public works jurisdiction to determine

Burns' Ann. St. 1914, § 8700, giving the (Supreme Court of Indiana. Jan. 31, 1917.) damages in street vacation proceedings, made 1. MUNICIPAL COBPORATIONS cm 657(2)

such acts judicial, and their determination a RIGHT TO VACATE STREETS-DELEGATION BY

final order from which an appeal is authorized LEGISLATURE.

under Acts 1905, c, 129, 101. The right to control and vacate public

(Ed. Note. For other cases, see Eminent Do. streets rests with the Legislature, but in this main, Cent. Dig. § 660; Dec. Dig. @m238(2).] state such jurisdiction has been delegated to lo- 9. EMINENT DOMAIN Om 100(0)-STREET VAcal authorities.

CATION PROCEEDINGS - DAMAGES-STATUTE. [Ed. Note.-For other cases, see Municipal Burns' Ann. St. 1914, § 8700, providing for Corporations, Cent. Dig. $8 722, 1429; Dec. assessment of damages in street vacation proDig. Ow657(2).)

ceedings, held broad enough to include appel. 2. EVIDENCE 83(2)—PRESUMPTIONS-OFFI- lant's injury where the vacation left his proper. CIAL PROCEEDINGS.

ty abutting on a cul-de-sac. In the absence of a contrary showing, it will (Ed. Note.-For other cases, see Eminent Do be assumed that the board of public works com main, Cent. Dig. § 267; Dec. Dig. Cow 100(6).) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

more

10. EMINENT DOMAIN Om 243(3)-STREET VA [2] In the absence of a showing to the conCATION PROCEEDINGS-DAMAGES. Where no damages were awarded to appel- lic works complied with the provisions of the

trary, we must assume that the board of publant by a board of public works in street vacation proceedings, it will be presumed that the statute authorizing the vacation of that part board found he had suffered po special injury, of the street in question. But, with this and where he did not avail himself of the concession, appellant insists that the act perprivilege of appeal therefrom, he cannot complain.

mits the taking of private property by such [Ed. Note. For other cases, see Eminent Do- proceedings, and therefore violates section 1 main, Cent. Dig. 88 628, 629, 700; Dec. Dig. of the Fourteenth Amendment of our federal Om 243(3).]

Constitution, in that it does not provide for Appeal from Superior Court, Marion Coun- notice as contemplated by the words “due ty; V. G. Clifford, Judge.

process of law," and that it also contravenes Action by Samuel Falender against Henry section 21 of the Bill of Rights of the ConstiC. Atkins and others. Judgment for defend- tution of Indiana, which provides that “no ants, and plaintiff appeals. Affirmed. man's property shall be taken by law without

Ralph M. Ketcham, Clair McTurnan, Roger just compensation." W. Wallace, John Vajen Wilson, and Merrill

Section 97 of the act supra makes it necesMoores, all of Indianapolis, for appellant. sary for the board, in a proceeding to vacate Ryan, Ruckelshaus & Ryan and Ferdinand a street, to first adopt a resolution to that Winter, all of Indianapolis, for appellees.

effect-
"describing the property which may be injuri-

ously or beneficially affected, and shall cause MYERS, J. Appellant brought this ac notice of such resolution to be published in a tión to recover of appellees damages for the newspaper of general circulation published in obstruction of Eddy street in Indianapolis. such city, once each week for two consecutive

weeks. Such notice shall name a date, not less A demurrer was sustained to the complaint, than ten days after the last publication, at and judgment followed for appellees.

which such board will receive or hear remonOn October 7, 1907, the board of public strances from persons interested in or affected works of the city of Indianapolis vacated all such remonstrances, if any, and thereupon take

by such proceeding. Such board shall consider that portion of Eddy street from the north final action, confirming, modifying

or rescinding bank of Pogues run north to Henry street. its original resolution, which action shall be Appellees own all the lots abutting on both final and conclusive on all persons." sides of the street vacated, and immediately

Section 98, supra, provides : after such vacation they constructed a fence in the preceding section, such board shall

cause

"Upon the final order being made, as provided across the south end thereof. At the time to be prepared a list or roll of all the owners of such vacation, and continuously since Mayor holders of property, and of interests therein, 6, 1898, appellant was the owner of certain sought to be taken or to be injuriously affected ;

* vacation of any street, lots abutting on and immediately south of and, in case of

a list of the owners or holders of propthat part of the street vacated; his south line erty, or of interests therein, to be beneficially being about 70 feet north of Merrill street, affected by such work. Such list shall not be which runs east and west, and one city block confined to the owners of property along the south of Henry street. The vacation afore and include all property taken, benefited or in

line of the proposed work, but shall extend to said leaves appellant's property abutting up- juriously affected. In addition to such names, on a cul-de-sac instead of upon a thorough- such list shall show, with reasonable certainty, fare. Appellant alleges that he had no notice ing to such persons and to be taken, or to be

a description of each piece of property belongof the proposed vacation until after was affected either beneficially or injuriously." made; that he had no knowledge of the pub

Section 99, supra, provides that: lication of any newspaper notice until Octo

"Said board shall proceed to award the damber 7, 1907; that no allowance was ever ages sustained, and to assess the benefits accrumade to him for the damage he has sustained, / ing to each piece of property on said list. When which is $3,000.

such assessments or awards are completed, said

board shall cause a written notice to be served [1] The right to control and vacate streets upon the owner of each piece of property, showdedicated and accepted by the public is pri- | ing the amount of such assessment or award, by marily with the Legislature, but this juris leaving a copy of the same at his last usual diction, in this state, has been delegated to place of residence, in such city, or by delivering

a copy to such owner personally. * Such municipalities or local tribunals. Hudson notices shall also name a day, not earlier than Township v. Smith, 182 Ind. 260, 106 N. E. ten days after service of notice, or after the 359; Town of New Castle v. Lake Erie, etc., said board shall receive or hear remonstrances

last publication, as the case may be, on which R. Co., 155 Ind. 18, 23, 57 N. E. 516.

from persons with regard to the amount of their Applicable to the case at hand, the General respective awards or assessments. Persons not Assembly has vested in the board of public awards, and claiming to be entitled to the same,

included in the list of such assessments or works of the city of Indianapolis the exclu shall be deemed to have been notified of the pensive control of its streets and alleys, and pre dency of the proceedings by the original notice scribed the procedure to be followed by the of the resolution of the board." board in such cases. Acts 1905, p. 219, 88 97, Section 101, supra, provides for a hearing 98, 99, 101, and 102; section 8700 et seq., by persons notified, or deemed to be notified, Burns 1914.

on a day fixed by the board, with regard to

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awards and assessments, by remonstrance, , which the Legislature has deemed sufficient. and authorizing an appeal from the action of Under these circumstances we cannot say the board to the circuit or superior court of the proceedings were not well within the the county in which the city is located. principle required to constitute due process Section 102, supra, provides that:

of law. Bowlin v. Cochran, 161 Ind. 486, 69 Such appeal may be taken by filing an original N. E. 153; Strange v. Board, 173 Ind. 640, complaint in such court within 20 days after 91 N. E. 242; Hudson Township v. Smith, the board has passed on such assessment or

supra. award, setting forth the action of the board, and stating the facts relied upon as showing an er.

[6] Nor can we say that the statute atror on the part of the board. "Such court shall tempts to deny him the right to receive comrehear the matter of such assessment de novo, pensation for any private or special injury and confirm, lower or increase the same as may he may have sustained on account of vacating seem just."

the street, but, on the contrary, it does make [3] "Due process of law,” within the mean

provision for compensating such abutting ing of the Fourteenth Amendment, supra, is owners for such injuries. For final action of not intended to control the power of the state the board vacating the street pursuant to to determine by what process legal rights section 97, supra, was the irst step in the may be asserted, provided such procedure proceedings. This action, if the board did will afford reasonable notice and a fair op- its duty, was followed by the preparation of portunity to be heard before final determi-a list or roll of "all the owners or holders of nation. Iowa Central Railway Co. v. Iowa, property, and of interests therein, sought to 160 U. S. 389, 16 Sup. Ct. 344, 40 L. Ed. 467; be taken or to be injuriously affected.” Then Rogers v. Peck, 199 U. S. 425, 26 Sup. Ct. 87, came the ten-day notice in writing to resi50 L, Ed. 256.

dents on the list relative to the question of This court, in the case of Campbell v. benefits or damages. A day was fixed when State, 171 Ind. 702, 87 N. E. 212, has said:

these matters would be heard. Due process of law requires only that provi

The case of Oler v. Pittsburgh, etc., Ry. sion shall be made for notice in some form, and an opportunity to be heard before some tribunal, Co., 111 N. E. 619, on this point, does not connot necessarily an organized court, nor before trol the case at bar; for in that case the a jury."

statute (Acts 1907, p. 617; sections 8910, Appellant was entitled to notice authoriz- 8916, Burns 1914) governing the vacation ed by law requiring notice, but it must be “was not intended to provide for the litigakept in mind that it is with the Legislature tion in the proceeding under it of any questo prescribe what the notice shall be, as well |tion affecting the private rights of owners sitas the tribunal before which the hearing may uated as appellant. Nor is there anything be had. Johnson v. Lewis, 115 Ind. 490, 18 in the statute which expressly or by necesN. E. 7; Kuntz v. Sumption, 117 Ind. 1, 19 sary implication seeks to take from appellant N. E. 474, 2 L. R. A. 655; Garvin v. Dauss- any private property right in the street and man, 114 Ind. 429, 16 N. E. 826, 5 Am. St. at the same time deny her compensation Rep. 637; Hudson Township v. Smith, supra. therefor.” And the court also found as a

[4] In determining this question, the courts fact that such right in this case was not de. may look to the object to be accomplished and termined; while in the case at bar appellant the limits within which the hearing may be is content with the allegation "nor was any confined for the purpose of settling the char- allowance ever made to this plaintiff for acter of the notice that should be required; damages.” From aught that appears from and if it be found suitable or admissible in this allegation, he may have had his day in the special case, the demand of the Consti- court, which resulted in a finding against tution in this respect will be satisfied. Da- him. vidson v. New Orleans, 96 U. S. 97, 24 L. Ed. [7] Appellees largely rely upon the rule, 616.

broadly stated, that property owners wboże The sections of the act to which we have lands do not abut on the po on of the street referred provide for notice to all persons in- vacated are not entitled to recover damages. terested or who may be injuriously affected, That is not the rule in this state. The vacaand for a day when they may be heard con- tion of the street as provided by law left apcerning each step to be taken by the board, pellant's property abutting on a cul-de-sac. beginning with notice of the adoption of the This fact is to be taken in connection with all resolution, down to the final action on the the facts pertaining to the special case, and assessments or awards, and for an appeal to if it then appear that such abutting owner the circuit or superior court of the county, by has, by reason of the changed conditions, suf. any party who may feel aggrieved by the fered special and peculiar injury to his propboard's action.

erty not shared in by the general public, he [5] If, as appellant contends, this is an ac- was entitled to have his damages assessed. tion for damages for property taken, or an This is so whether it be called a property invasion of his private right, then the act in right invaded or an injury to his abutting question clearly gave him a remedy, and an property. Indiana, etc., R. Co. v. Eberle, 110 opportunity to be heard before a tribunal Ind. 542, 546, 11 N. E. 467, 59 Am. Rep. 225; vested with power or jurisdiction to deter- O'Brien v. Central Iron, etc., Co., 158 Ind. mine his rights in the premises, and notice 218, 222, 63 N. E. 302, 57 L. R. A. 508, 92

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