Adams v. Harrington

• Decision Date: 29 December 1887
• Docket Number: 13,768
• Citation: 14 N.E. 603,114 Ind. 66
• Parties: Adams et al. v. Harrington et al
• Court: Indiana Supreme Court

14 N.E. 603

114 Ind. 66

Adams et al. v. Harrington et al

No. 13,768

Supreme Court of Indiana

December 29, 1887

From the White Circuit Court.

The judgment is affirmed, with cost.

S. P Thompson, W. Darroch, S. Claypool and W. A. Ketcham, for appellants.

E. P Hammond and D. L. Bishop, for appellees.

OPINION

Niblack, J.

This suit was commenced in the Newton Circuit Court, where a temporary injunction was granted. The venue was then changed to the White Circuit Court. That court sustained a demurrer to the complaint, dissolved the temporary injunction, and gave final judgment upon demurrer in favor of the appellees. This appeal, therefore, presents only the question of the sufficiency of the complaint.

The complaint charged that, on the 4th day of December, 1883, a petition was presented to the board of commissioners of the county of Newton, praying for the establishment of a highway in that county, described as follows: "Commencing at the northwest corner of section eight (8) and the southwest corner of section five (5) in township thirty-one (31) north range eight (8) west; thence running west on the section line dividing sections six (6) and seven (7) in township thirty-one (31) north, range eight (8) west, one mile to the range line dividing ranges eight and nine, viz., Lincoln and Lake townships; thence running west on the section line dividing sections one (1) and twelve (12) in township thirty-one (31) north, range nine (9) west, one hundred and seventy-six (176) rods, to point near the Kankakee river marsh; thence running in a south westerly direction about sixty-nine (69) rods around said marsh, on the most suitable ground, to a point intersecting a public highway on the quarter mile line in section twelve aforesaid sixteen (16) rods south of the section line dividing sections one (1) and twelve (12) aforesaid;" that proof was thereupon made to the board of commissioners that notice of the presentation of the petition had been posted up at different places, in which notice the line of the proposed highway was described the same as in the petition, and not otherwise more certainly or specifically; that the board, after causing the petition and notice to be filed and recorded, entered an order substantially in the words following: "And it appearing to the satisfaction of the board that legal notice has been given of the presentation of the above petition, and that said petition is subscribed by at least twelve freeholders of said county, six of whom reside in the neighborhood of said highway, it is, therefore, ordered by the board that William A. Burton, Joseph Burch and Robert A. Hamilton be and are hereby appointed viewers to view said proposed road, and that they meet at the office of George Smith, justice of the peace, on January 29th, 1884, and, after being duly sworn, proceed to view, mark and stake out said road to the width of sixty feet, and report at the March term of this court, and this cause is continued."

The complaint also charged that the viewers so appointed, without authority other than as stated, and without the knowledge or consent of any of the land-owners to be affected thereby, proceeded to view, and did view, mark and stake out a route different in its location and description from that attempted to be described in the petition and notice hereinabove named, and made a report of their proceedings to the board of commissioners; that said report was, at the March term, 1884, of the board, entered of record with an order attached in these words: "Which report is received and confirmed, and it is ordered by the board that said described road be established sixty feet wide on the line described above, thirty feet on each side of said line, and that the same be ordered opened and kept in repair, and that the trustees of Lincoln and Lake townships be notified according to law and the viewers paid."

The complaint further charged that John Adams, one of the plaintiffs, is the owner of several particularly described tracts of land in Newton county, on parts of which a portion of the line of road marked and staked out by the viewers is located, and that John Brady, the other plaintiff, is, in like manner, the owner of other described tracts of land in the same county, on parts of which another portion of said line of road is also located; that the lands of the said Brady constituted a stock farm, on which he kept cattle horses and mules of great value, and on which he had erected sheds, cattle-yards, stables and barns at great expense; that it would cause great and irreparable injury to the said Brady to be compelled either to remove or to abandon his said improvements on his farm; that Charles A. Harrington, as trustee of Lincoln township, Christian L. Brandt, as trustee of Lake township, Oliver Gleason, as supervisor of the first named township, and George Curtis, as supervisor of the township last named, were, upon the pretence of opening a highway on the line marked and staked out by the viewers, threatening to break the inclosures of the plaintiffs, and to destroy the said Brady's sheds, cattle-yards, stables and barns, all of these persons being financially insolvent and unable to respond in damages for the injuries they were threatening to inflict; that the opening and establishment of the proposed highway would do irreparable damage to the lands of both of the plaintiffs. Wherefore it was charged that the pretended proceedings for the location and laying out of a highway were void and incapable of being carried into effect: First. Because the attempted description of a line of road contained in the petition describes only a cul de sac, unconnected with any system of highways in Newton county. Second. Because that part of the description in question which reads as follows: "to a point near the Kankakee river marsh; thence running in a southwesterly direction about sixty-nine (69) rods around said marsh, on the most suitable ground, to a point intersecting a public highway," is too indefinite, and does not describe a line which even a surveyor could ascertain and follow. Third. Because the notice contained the same defective, indefinite and void description as that embraced in the petition. Fourth. Because the description of the proposed highway as given in the report of the viewers does not correspond, either in location, or in distances or directions, with that contained in the petition and notice of its presentation, or in the order of the board appointing the viewers, but marks and stakes out a new and different route, and does not give either the county or State in which the route attempted to be described is situate, and because such description is too indefinite and uncertain. Fifth. Because the final order of the board is not based upon the description set out in the petition and notice, but orders the...