Chicago & A. Ry. Co. v. Sutton

• Decision Date: 23 February 1892
• Citation: 130 Ind. 405,30 N.E. 291
• Court: Indiana Supreme Court
• Parties: CHICAGO & A. RY. CO. v. SUTTON et al.

130 Ind. 405

30 N.E. 291

CHICAGO & A. RY. CO.

v.SUTTON et al.

Supreme Court of Indiana.

Feb. 23, 1892.

Appeal from circuit court, Huntington county; J. S. DAILY, Judge.

Suit by the Chicago & Atlantic Railway Company against William Sutton and others to enjoin the establishment of a highway across complainant's lands. From a decree for defendants, complainant appeals. Affirmed.

B. F. Ibach, for appellant. O. W. Whitelock, for appellees.

MCBRIDE, J.

This appeal involves the validity of an order of the board of county commissioners of Huntington county, purporting to establish a highway. The appellant was the plaintiff below, and by its complaint alleged, in substance, that it was the owner of a strip of land 100 feet wide in said county, comprising its right of way, over which it was operating a line of railroad, that at a certain point thereon the appellees had wrongfully and without license entered upon said right of way, torn down the fence inclosing it for a distance of 40 feet on each side, and were threatening to, and, unless restrained, would, cut down the grade of their track, raise and construct embankments, and establish a highway across the line of their road for the use of the public; and that such threatened acts were not only without license or consent from them, but were wrongful, and without authority of law, and, if permitted, would work them irreparable injury. Prayer for injunction. The appellees answered jointly by general denial, and also each filed a special plea. That filed by Sutton admits the acts charged, but seeks to justify on the ground that he was acting under and in obedience to the command of his co-defendant Emley, who was road supervisor of the road district in which the acts complained of were done; that previously a highway had been lawfully established by the board of county commissioners of Huntington county across the appellant's right of way, and that said supervisor had given the notice prescribed by law requiring the removal of their fence within 60 days; that, said fence not being removed at the end of that time, he, with others, was by the supervisor required to assist in its removal, and in the construction across said right of way of approaches for said highway. Emley's separate answer also admits the doing of the acts charged, but seeks to justify on the ground that what he did was done in the legitimate exercise of his authority as road supervisor of the road district in which the acts were done, and not otherwise. The answer alleges, in substance, that he was duly elected and qualified as such supervisor, and was, when said acts were done, acting in that capacity; that on the 29th day of August, 1888, a petition for a public highway was filed with the board of county commissioners of said county by twelve freeholders of the county, six of whom were residents of the immediate vicinity of the proposed highway; that the route of the proposed highway (which is described in the answer) crossed the appellant's right of way at the point where the acts complained of were done; that there was “no other good way to locate said highway, *** except by crossing plaintiff's right of way at that point; that notices of the hearing of said petition were posted in three public places in the neighborhood of such proposed highway on the 9th day of August, 1888; that the lands included in plaintiff's right of way were described in said petition and notices, and that the petition and notices described the line of the highway petitioned for to pass over and across plaintiff's right of way at the place described in plaintiff's complaint.” It is further averred that at the September term of the commissioners' court the board of commissioners, “after hearing and examining said petition, notices, and proofs,” appointed viewers, who, after qualifying, viewed, marked out, and located said proposed highway 40 feet wide, as prayed for in the petition, and made their report of the same to the board of commissioners, reporting at the same time that said proposed highway would be of public utility; that, at the December, 1888, term, their report was approved by the board, an order was made establishing the highway as petitioned for, the county auditor was directed to transmit a certified copy of the proceedings to the township trustee of said township, which it is alleged was done. The final order made by the board was as follows: “The board, after carefully examining and being fully advised in the premises, does approve of said viewers' report, and order said work opened as petitioned for; and it is further ordered by the board that the auditor transmit a certified copy of said viewers' proceedings to the trustee of Huntington township.” It is further alleged that the certified copy of the order and report was delivered to the township trustee, who made a proper record of the highway, and ordered the appellee, as supervisor of road district No. 4 to open and improve it; that on the 23d day of January, 1889, he gave to appellant notice to remove its fences from across the line of the highway thus established within 60 days, but that at the expiration of the 60 days the fence had not been removed; whereupon, as such supervisor, he, with his co-defendant and other laborers, proceeded to “tear down the fence” of the appellant, as alleged in the complaint.

The appellant demurred to both answers, on the ground that they did not state facts sufficient to constitute a defense. The demurrers were overruled, and these rulings are assigned as error. The appellant then, by leave of court, filed a second paragraph of complaint, setting out a full and complete transcript of the files and order-book entries in the proceedings to establish the highway, beginning with the petition and ending with the notice by the supervisor to remove the fence, referred to in the answer of Emley. This discloses the following facts in addition to those shown by the answer: The petition asked for the location of a highway beginning at a section corner some distance due east of the south-east corner of the corporation boundary of the city of Huntington, and running thence west to the city limits, and thence continuing for some distance along the south line of the corporation. East of the city limits it was to be 40 feet wide,-20 feet to be taken from each side of the section line. Appellant's right of way is on this part of the route. That portion along the south line of the city was to be but 20 feet wide, all to be taken from the land lying outside of the city limits. The notice which was posted was full, and the proof of its posting is also in proper form, and shows that it was properly posted, and in due time. It is averred, however, that the appellant had no actual notice. The following is the order-book entry relating to notice: “And the board, after carefully examining and fully considering said petition, copy of notice, proof of posting, and all other papers filed herein, finds that said petition is signed by the requisite number of freeholders, as required by law, and that said petition is good, and does order,” etc. The report of the viewers shows that they viewed and marked out the highway over the route and of the width asked in the petition, and that they considered the proposed road of public utility. The order approving the report and establishing the highway fixes its width, as indicated in the petition and viewers' report, at 40 feet for a portion of the distance and 20 feet for the remainder. It is averred in the complaint that at the point where the width of 40 feet ends there is “no egress except to return as one comes in, and gives no outlet to any one, and is of no public utility whatever.” The court sustained a demurrer to this paragraph of complaint, on the ground that it did not state facts sufficient to...