To Supreme Court on petition to transfer.
This action arises out of an attempted annexation of land by the appellee, the City of Fort Wayne, Indiana. Appellants were owners of 372 out of 492 parcels or 75.6% of the land proposed to be annexed. They opposed said annexation by filing a written remonstrance in accordance with Ind. Ann. Stat. § 48-702 (1963 Repl.) as set forth below. The trial court dismissed the remonstrance against appellants, and overruled their motion for a new trial. Appellants took an appeal to the Appellate Court which affirmed the trial court's verdict. Doan v. City of Fort Wayne (1969),
The facts in this case may be summarized as follows: The Common Council of the City of Fort Wayne adopted Annexation Ordinance No. X-4-65 on May 25, 1965, which ordinance proposed to annex the land herein in dispute. Appellants filed timely written remonstrances as provided by the provisions of § 48-702, supra, and the cause was heard in the Allen Superior Court #3. The trial court found that of the owners of 372 parcels of land who signed remonstrances, the right to remonstrate was waived by the owners of 131 of these parcels; that the owners of another 113 parcels waived their right because a waiver was incorporated in instruments, 98 of which were recorded and 15 of which were not; that the present owners of 3 parcels had previously waived their rights to remonstrate in instruments signed individually; that the right to remonstrate was waived in instruments duly recorded by the predecessors in title of the owners of an additional 37 parcels of land; that the waivers as set forth, except as to the 15 parcels affected by the unrecorded instrument, were valid waivers and, therefore, could not be counted in determining whether sufficient signatures were affixed to the remonstrance in order to establish its validity; that there only remained valid and effective signatures of the owners of 103 parcels out of the 492 parcels; and that the 103 parcels constituted less than 50% of the 492 parcels to be annexed.
The trial court as a consequence of these findings, dismissed the remonstrance because neither statutory prerequisite was satisfied, to-wit: that the appeal be taken by a majority of the owners of the land to be annexed or owners of more than 75% of the assessed valuation thereof. No evidence was introduced at the trial as to the latter signatural requirement.
We agree with the Appellate Court that the significant questions presented by this case are whether the statutory right
The right to remonstrate is an extremely important one. The legislature created the right to give affected landowners a legal means to challenge annexation if they "deem themselves aggrieved or injuriously affected." The statute reads in pertinent part as follows:
In the present case all of the alleged waivers grew out of contracts entered into with appellee for the installation of water service in land located outside the city limits of Fort Wayne. In addition to other consideration paid by the landowners to appellee, the contracts all contained a waiver of the right to remonstrate against annexation. One provision in the waiver states in part as follows:
All of these alleged waivers, with one exception, were signed before the date of the annexation ordinance. The oldest of the waivers dates back to 1959.
A careful reading of the language of the above statute setting forth the procedure for remonstrances leads us to the conclusion that the right to remonstrate does not vest before territory is sought to be annexed.
There is sound logic for this conclusion. In the first place, it is impossible to imagine how a landowner would know he were aggrieved or injuriously affected unless he knew when and under what circumstances prospective annexation were to take place. The statute provides that the remonstrance or complaint shall state the reason why such annexation ought not in justice take place. The right of remonstrance is designed to protect the landowner from injury arising out of annexation. Unless there is an annexation, there can be no injury, nor can there be any right to remonstrate.
It is well settled that the right or privilege alleged to have been waived must have been in existence at the time of the alleged waiver. The right must exist before one can waive it. Conner v. Fisher (1964), 136 Ind.App. 511, 202 N.E.2d 572; Lavengood v. Lavengood (1947), 225 Ind. 206, 73 N.E.2d 685; Shelt v. Baker (1922), 79 Ind.App. 606, 137 N.E. 74.
It is our belief that the right to remonstrate may be waived, however, it is imperative that it be in existence at the time of waiver. Such an interpretation is necessary if the right conferred is to be meaningful. In the instant case with one exception, all of the waivers were signed before any annexation was pending. Furthermore there is no evidence in the record to indicate that annexation was contemplated or that any of the signatories knew of any such plan. In short, the record is completely barren of any evidence which would lead this court to believe that the right to remonstrate had vested at the time the alleged waivers were executed.
Moreover, we are compelled by our examination of this section (§ 48-702, supra) to conclude that an owner of land may not validly waive his right to remonstrate against future annexations, unless expressly authorized to do so by statute. There are several reasons for this.
In the first place, the right to remonstrate is a right to have a day in court, it is not a right to obstruct annexation. The statute commands the court to permit annexation to take place notwithstanding the remonstrance, if the primary determinants are found to exist: We repeat them here:
Clearly, to permit municipalities to secure waivers years in advance of annexation would render the terms of the statute meaningless. Common sense would tell us that a municipality, whose annexation scheme failed to satisfy the determinants set forth in the statute, would find no difficulty in executing it, if it could secure sufficient advance waivers to oust the court's jurisdiction. The statute is most easily circumvented in those areas in greatest need of municipal services such as water lines, fire and police protection. Realistically landowners in such areas would face the choice of signing the waiver or going without these vital services. We are unwilling to say that under such circumstances annexation, however injurious or repugnant to the landowner, must take place without court examination.
Secondly, we agree with appellants that annexation of territory by a municipality is a matter of public policy and public interest and that annexation must be based thereon rather than on purely individual benefits and burdens. Smith et al. v. Incorporated Town of Culver (1968), 249 Ind. 665, 234 N.E.2d 494; Keene v. Michigan City (1965), 137 Ind.App. 477, 210 N.E.2d 52; City of Aurora v. Bryant (1960), 240 Ind. 492, 165 N.E.2d 141; Arnholt v. City of Columbus (1957), 128 Ind.App. 253, 145 N.E.2d 660. Accordingly, we find that the waivers involved in the case at bar are objectionable because of their remoteness to the actual annexation. The public interest in a particular annexation can only be determined at the time and place it is to occur and it follows that only the present landowners can possibly decide whether or not to remonstrate. To permit a predecessor in title to bind forever his successors would not only derogate from the public interest but it would also have the effect of destroying the rights of other landowners to remonstrate. As to them the statute would be a nullity even
Finally, it is erroneous to conclude that because the legislature permits statutory waiver of the right of remonstrance in the construction of sewage facilities, Ind. Ann. Stat. § 48-3963, (1969 Supp.), that by analogy waiver should be permitted in contracting for other services relating to factors of public health, safety and morals. On the contrary, if the legislature meant to extend waiver of the right to other areas we must presume that it would have done so.
In contracts with owners of real estate for the construction of sewage facilities, the statute expressly provides for a waiver of the right to remonstrate:
We will not inquire into nor speculate as to the reasons the legislature found to incorporate such a provision of waiver into the law relating to sewer construction. Suffice it to say that no such waiver provision exists in the statute under which this controversy arose, § 48-702, supra, and we will not judicially legislate one. The rule of expressio unius est exclusiono alterius (expression of one thing is the exclusion of another) should prevail.
Transfer is hereby granted. Judgment is reversed with orders to the trial court to determine the sufficiency of the remonstrance in a manner not inconsistent with this opinion.
I dissent from the majority opinion granting transfer and reversing the judgment of the trial court in this case.
I have read the opinion of the Appellate Court, Doan v. City of Fort Wayne (1969), 144 Ind.App. 517, 247 N.E.2d 544, 17 Ind. Dec. 519. After reading the decision of the Appellate Court, I am of the opinion that it is correct. I think the provisions of the agreement entered into by the property owners are clear and uambiguous and that their expressed provisions must govern the rights of the parties involved. It is my opinion that they voluntarily chose to waive the right to remonstrate in exchange for the services requested.
I, therefore, approve the opinion of the Appellate Court affirming the judgment of the trial court.
NOTE. — Reported in 252 N.E.2d 415.