Brandenburg v. Hittel
| Decision Date | 15 October 1896 |
| Docket Number | 2,186 |
| Citation | 45 N.E. 45,16 Ind.App. 224 |
| Parties | BRANDENBURG v. HITTEL ET AL |
| Court | Indiana Appellate Court |
From the Marion Circuit Court.
Affirmed.
Henry Warrum and S. E. Urmston, for appellant.
James B. Black and Charles G. Offutt, for appellees.
This cause was transferred to this court by order of the Supreme Court.
The appellees petitioned the board of commissioners of Hancock county to vacate a certain highway; said highway being situated wholly within that county. After the appointment of viewers and the filing of their report favorable to such vacation, the appellant filed a remonstrance on the ground that the vacation would not be of public utility; and on the ground that he would sustain damages by such vacation. Reviewers were appointed who reported in favor of the utility of the proposed vacation and of damages to appellant in the sum of $ 150.00. The board entered a final order vacating the road and requiring the appellees, the petitioners, to pay to the appellant the damages assessed. The petitioners appealed to the circuit court of Hancock county from the award of damages and the remonstrant appealed from the order vacating the road. The venue was changed to the court below. A trial resulted in a finding and a judgment vacating the road and without awarding the appellant any damages.
The action of the Marion Circuit Court in overruling the appellant's motion to dismiss the appeal, and appellant's motion for a new trial are the only errors assigned.
The basis for appellant's motion to dismiss appellees' appeal is that the petitioners failed to move the board to set aside the report of the reviewers assesing damages for the purpose of having the board appoint a new set of reviewers to assess the damages. It is contended that the failure to make such motion was a waiver of all objections to the report and that therefore, no question could be properly presented as to the damages in the circuit court.
Many authorities are cited to the effect that it is only such questions as were properly raised and put in issue before the board that can be tried and determined on appeal to the circuit court. It is insisted that as no objection was made in the commissioners court to the report of the reviewers assessing damages in favor of the remonstrant, that none can be raised in the circuit court and that it follows that appellant's motion to dismiss should have been sustained.
Whilst it is true that the board may, when it is made to appear that the damages are unreasonable, set aside the assessment and order another review, section 6749, Burns' R. S. 1894 (5022, R. S. 1881), it is not contemplated that the aggrieved party must object to the assessment and pray for another review. The authorities cited are not in point because the report of the reviewers does not form any issue in the case but upon appeal such report is vacated and set aside as the direct effect of the appeal, and in the circuit court the question of damages is tried de novo, Turley v. Oldham, 68 Ind. 114; Thayer v. Burger, 100 Ind. 262; Clift v. Brown, 95 Ind. 53. The issue to be tried is made by the remonstrance and not by the report of the reviewers nor by any ruling the board might make in relation thereto.
There was no error in overruling this motion. On the trial of the cause in the circuit court the appellant proposed to prove the value of his lands with and without the road. The appellees objected to this evidence stating as one of the grounds of their objections that the road did not pass through appellant's lands, and for that reason he was not entitled to damages. This objection was sustained and a new trial was sought on account of such ruling.
The road sought to be vacated did not...
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