Anderson v. City of Huntington

• Decision Date: 14 May 1907
• Docket Number: No. 5,821.,5,821.
• Parties: ANDERSON v. CITY OF HUNTINGTON.
• Court: Indiana Appellate Court

40 Ind.App. 130

81 N.E. 223

ANDERSON

v.CITY OF HUNTINGTON.

No. 5,821.

Appellate Court of Indiana, Division No. 1.

May 14, 1907.

Appeal from Circuit Court, Huntington County; J. B. Kenner, Special Judge.

Action by Margery R. Anderson against the city of Huntington. From a judgment for defendant, plaintiff appeals. Reversed, with instructions.

Spencer & Branyan, for appellant. Fred H. Bowers and Milo Feightner, for appellee.

HADLEY, J.

This was a suit by appellant against appellee to recover damages for appropriation of appellant's real estate to be used as a public street of said city. The evidence discloses that appellant owns a tract of land in the city of Huntington, which fronted on a road known as the “Goshen Road,” until the corporate limits of the city were extended to include appellant's property, when said Goshen Road became and was known as “Jefferson Street.” The Goshen Road was surveyed under an act of the General Assembly of the state of Indiana of 1834, which authorized the surveying and laying out of a road from Ft. Recovery, in Ohio, down the Wabash river, to Huntington, and from Huntington to Goshen the road was surveyed and laid out in 1837. The width of said road was never defined or established by any proper authority, and no record of said width was ever made, although the line of the road was recorded. The evidence discloses a sort of legend that the road was 60 feet wide, but the evidence shows that at no place outside of the town of Huntington was said road 60 feet wide, in some places being as narrow as 38 1/2 feet, and ranging from that to 57 1/2 feet. Appellant moved on the lot in question in 1863, and continuously resided thereon until the filing of this suit. There was a fence along the front of said lot, which fence was 30 feet east of the west line of appellant's tract, as shown by her deed. This fence was parallel with the said tract line and the Goshen Road, forming the eastern boundary of said road, and was in line with the other fences above and below it, when appellant moved there. It was maintained continuously in the same place until it was torn down in 1895 or 1896. When the fence was removed, some of the posts were left standing, and appellant continued to use the whole of said lot within the line of said fence as a lawn, having trees and shrubbery thereon. The appellee passed a proper order for the improvement of Jefferson street along appellant's said lot. The city engineer surveyed said street and established it at the regular width of 60 feet, and, in doing so, ran the east line of said street from 7 to 10 feet east of the line of said fence, and under the direction of the city a sidewalk was put down along said line so established; the sidewalk being wholly within the line of said old fence. In the construction of the sidewalk, a large tree was removed from appellant's lot which had been planted by the husband of appellant in 1867, and which stood inside of said fence line and in the line of said sidewalk. This tree was large and furnished shade and protection to the home of appellant. Appellee did not condemn any of said property so taken, or did it offer to pay any damages, or make any compensation for said invasion. There was no evidence introduced by any one that any portion of the land within the said fence of appellant had ever been used by the public; but all the evidence was to the effect that the public had been excluded from all of that portion of the land so taken that lay within the said fence line of appellant, which fence had been maintained at that particular place as far back as any one could remember, until removed as above stated. The court made a special finding of facts and stated conclusions of law thereon against appellant. Appellant moved for a new trial, which motion was overruled and judgment rendered against appellant according to the conclusions of law.

The ruling of the court in its conclusions of law and in overruling appellant's motion for a new trial are assigned as error. The motion for a new trial brings into question the sufficiency of the evidence to sustain the finding. This court will not weigh the evidence in a case of this character. It is only when there is an entire lack of evidence that this court will reverse a cause of this kind for insufficiency of evidence. That the Huntington and Goshen Road is a public highway, and was a public highway in front of appellant's property prior to the action of the city of Huntington in establishing Jefferson street thereon,...