Barnard v. Haworth
| Decision Date | 27 May 1857 |
| Parties | Barnard and Others v. Haworth |
| Court | Indiana Supreme Court |
From the Union Circuit Court.
The judgment is affirmed, with 10 per cent. damages and costs.
Jonathan F. Gardner and Charles H. Test, for appellants.
The appellants were the defendants below, and the appellee the plaintiff.
The complaint charges that the defendants with force, etc., broke and entered the plaintiff's close, and therein committed various trespasses, etc.
The defendants answered--1. By general denial. 2. Justifying on the ground that the supposed trespasses were done by virtue of an order of the board of commissioners, which authorized the opening of a private road through the plaintiff's land. In this defense, the petition upon which the action of the board was founded, and all other proceedings had before the commissioners, relative to the road, are set out in hoec verba. The order is as follows:
"And the board, having examined the premises, order and direct that the route set forth as petitioned for, and recorded, * * * be established as a private road, for the convenience of the petitioners, and further, that they pay the costs."
The plaintiff replied generally, that the defendants, in their own wrong, without the cause alleged, committed the several trespasses in the complaint charged.
Verdict and judgment for the plaintiff.
To sustain the defense, the defendants, upon the trial, offered in evidence the proceedings set forth in the second paragraph; but the Court refused to admit them, on the ground that the order did not define the width of the road, and was therefore, a nullity. The statute under which the order was made, declares, "That all private roads shall not be less than thirty feet wide; and that it shall be the duty of the board of commissioners, in their order establishing such road, to define and specify the width thereof." Acts of 1839, p. 105, sec. 30. The duty of the commissioners is thus explicitly pointed out. They had no power to establish the road, unless in the mode prescribed by the statute. And having, in this instance, failed to define its width, their order must be held invalid. This Court has often decided that an order establishing a road whose width is not defined, is void. White v. Conover, 5 Blackf. 462; Carlton v. State, 8 Blackf. 208.
But here the order was set out in the defense, which was suffered to pass without demurrer; hence, it is insisted that the plaintiff had no right to resist its introduction as evidence in the cause. In support of this position, we are referred to a rule of practice which says that, "Where the facts stated in the answer are not sufficient to constitute a cause of defense, the plaintiff may demur." * * * And "Unless the objection be taken by demurrer, it shall be deemed to be waived." 2 R. S. p. 42, sec. 64. This rule is not strictly applicable to the question under consideration; because the ruling of the Court did not relate to the answer, but to the proposed evidence. It is true, the order of the commissioners is...
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