Corns v. Clouser
| Decision Date | 15 March 1894 |
| Docket Number | 16,673 |
| Citation | 36 N.E. 848,137 Ind. 201 |
| Parties | Corns v. Clouser et al |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is reversed.
B Crane, A. B. Anderson, B. T. Ristine and T. H. Ristine, for appellant.
C Johnston and E. R. Johnston, for appellees.
This suit was by the appellees to establish an easement across the lands of the appellant, to be used as a private way in passing to and from appellees' lands, between which and the public highway were appellant's lands.
The first alleged error of the trial court is in the overruling of the appellant's motion to make more specific the averments of the second and third paragraphs of complaint as to the location of the way sought. The second paragraph pleaded a parol agreement for a right of way generally, and it is manifest that the pleading in this respect could be no more specific than the agreement. If the agreement was insufficient, its weakness could only be tested upon demurrer. The motion was in a single specification, and was addressed to the paragraphs jointly, and therefore was unavailing if either paragraph was not subject to such motion.
The complaint alleged the ownership by the appellant of a tract of land not necessarily affected by the way to which the jury found the appellees entitled, and not apparently affected by the way specifically alleged in some of the paragraphs to have been agreed upon. The appellant moved the court to strike out the allegation as to such ownership which motion was overruled. This ruling was harmless, even if conceded to have been erroneous.
Three of the paragraphs of complaint alleged the ownership, by the appellees' grantor, of a tract of land adjoining on the north the lands of the appellant; that a public highway ran north on the east line and west on the north line of appellant's land, thus dividing the lands of appellant and appellees; that the appellant sought to vacate said highway and establish another which would not divide his lands but would run on the south and west sides thereof, thus taking said highway entirely from appellee's lands; that in order to compensate for the loss to appellees' lands of said highway the appellant agreed to supply a private way for the benefit of said lands; that by agreement said grantor joined in the petition for said change of highway, and went into the use of said private way, and continued in the use thereof until appellees became the owner thereof.
These facts, the appellant insists, so far from constituting a cause of action, present an agreement void as against public policy, because, it is said, "the vacation and establishment of public highways are not matters of private contract, but are affairs of public concern." As supporting this view are cited the following cases: Elkhart, etc., v. Crary, 98 Ind. 238; State v. Johnson, Admr., 52 Ind. 197; Louisville, etc., R. W. Co. v. Sumner, 106 Ind. 55, 5 N.E. 404; Hunter v. Pfeiffer, 108 Ind. 197, 9 N.E. 124; Jacobs v. Tobiason, 65 Iowa 245, 21 N.W. 590; Maguire v. Smock, 42 Ind. 1.
These are but few of the many cases holding void contracts to influence public officers in the discharge of their official duties, to thwart public interests, to speculate upon the enforcement of public rights, to vest in the individual present interests which interfere with the future public welfare, combinations by which individuals secure unequal advantages over other individuals through the administration of public affairs, those agreements which stifle competitive bidding and many others of like character.
If the case before us falls within the class or classes mentioned, the lower court should have sustained the appellant's demurrer to the paragraphs of complaint so pleading said agreement.
None of the cases cited, unless it be that of Maguire v. Smock, supra, can be said to involve a question analogous to that here presented.
In that case notes were executed to represent the price given to induce two...
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