Anderson v. City of Huntington
| Decision Date | 14 May 1907 |
| Docket Number | 5,821 |
| Parties | ANDERSON v. CITY OF HUNTINGTON |
| Court | Indiana Appellate Court |
From Huntington Circuit Court; J. B. Kenner, Special Judge.
Action by Margery R. Anderson against the city of Huntington. From a judgment for defendant, plaintiff appeals.
Reversed.
M. L Spencer and W. A. Branyan, for appellant.
Fred H Bowers and Milo Feightner, for appellee.
This was an action 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, fronting 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 (Acts 1834, p. 308), 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 nor 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 sixty feet wide, but the evidence shows that at no place outside of the town of Huntington was said road sixty feet wide, in some places being as narrow as thirty-eight and one-half feet, and ranging from that to fifty-seven and one-half feet. Appellant moved on the lot in question in 1863, and continuously resided thereon until the filing of this action. There was a fence along the front of said lot, which fence was thirty 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 sixty feet, and, in doing so, ran the east line of said street from seven to ten 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 constructing the sidewalk, a large tree, which had been planted by appellant's husband in 1867, and which stood inside of said fence line and in the line of said sidewalk, was removed. This tree was large and furnished shade and protection to the home of appellant. Appellee did not condemn any of said property so taken, nor did it offer to pay any damages nor make any compensation for said invasion. There was no evidence introduced by anyone that any portion of the land within 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 said fence line of appellant, which fence had been maintained at that particular place as far back as anyone could remember, until removed as heretofore 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 was rendered against appellant according to the conclusions of law.
The rulings 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, cannot be controverted. But its width and boundaries never having been established and determined by any competent authority, or recorded in any proper record, these boundaries must be determined by the use by the public. The way cannot be greater than the use. Where the...
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