Common Council of Indianapolis v. Croas

Citation7 Ind. 7
PartiesThe Common Council of Indianapolis v. Croas
Decision Date26 November 1855
CourtSupreme Court of Indiana

From the Marion Court of Common Pleas.

The judgment is reversed with costs. Cause remanded.

N. B Taylor, for appellant.

J. L Ketcham, for appellee.

OPINION

Gookins J.

The appellee was prosecuted before the mayor of Indianapolis, for obstructing an alley in violation of an ordinance of the city. On appeal to the Common Pleas, the defendant had judgment, from which the city appeals to this Court.

In 1837, one Harris laid off an addition to the town of Indianapolis, a plat of which was duly recorded, on which an alley is designated, extending through several blocks. The defendant owns a lot, extending through half a block, bounded by the alley, opposite to which another lot, owned by the defendant, and two others, owned by different proprietors, abut upon the same alley. The obstruction consisted of fencing up that part of the alley adjoining the defendant's lot first mentioned, which he refused to remove on proper notice. That part of the alley has been enclosed and in the defendant's possession since 1838; the residue has been open since 1843. The defendant's deeds do not include the alley, but describe his lots as being bounded by it.

The question arising upon this state of facts, is, whether the alley has been vacated by non-user. The following statutory provision is relied upon to show that the alley is vacated:

"Every public highway already laid out, or which may hereafter be laid out, and which shall not be opened and worked within six years from the time of its being so laid out, shall cease to be a highway for any purpose whatever." R. S. 1843, p. 332, sec. 54.

We do not think this section was intended to apply to the streets and alleys of a town or city. The legislative intention is to be gathered from the several enactments bearing upon the subject. The chapter in which this section is found, is on the subject of "highways and bridges." It prescribes the mode of laying out, changing, and vacating highways, defines the powers and duties of supervisors, specifies who are liable to perform labor upon them, directs the manner of enforcing its performance, and provides for the erection and repair of bridges, &c. No reference is made in this chapter to the streets or alleys of towns, unless it is contained in the section above quoted; and it is very evident that no other part of it has any application to them whatever.

There is another chapter, the 24th, page 383 of the same revision, which prescribes the manner of laying out towns, the vacation of town lots, streets, alleys, public squares, and commons; and here is the place to look for a provision like that on which the defendant relies, but none such is found. While on the subject of vacating streets and alleys, had it been intended that non-user should have that effect, it would have been so declared. Upon comparing the two chapters, and considering the objects of both, nothing is more apparent than that if the 54th section above referred to embraces streets and alleys, it results from accident and not from design. To give it that effect would therefore violate the first and most obvious rule of construction, the legislative intention.

The appellee refers us to an unreported decision of this Court in the case of the city against Noble's heirs, which, we must admit, can not be distinguished from the present case. The whole of that decision is as follows: "The streets of a town or city are public highways; this case is therefore within the 54th section of the act of 1843, respecting the laying out of highways." We are not aided by any reasoning of the Court, in that case, and as it was never reported, it...

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