City of Hammond v. Maher

• Decision Date: 13 January 1903
• Citation: 30 Ind.App. 286,65 N.E. 1055
• Parties: CITY OF HAMMOND v. MAHER.
• Court: Indiana Appellate Court

30 Ind.App. 286

65 N.E. 1055

CITY OF HAMMOND

v.MAHER.

Appellate Court of Indiana, Division No. 1.

Jan. 13, 1903.

Appeal from superior court, La Porte county; H. B. Tuthill, Judge.

Action by Bridget Maher against the city of Hammond. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lawrence Becker, John A. Bowers, and N. L. Agnew, for appellant. A. F. Knotts, for appellee.

HENLEY, J.

Action by appellee against appellant for damages caused by the alleged negligent failure of appellant to keep one of its streets in repair. The cause was tried by a jury, verdict returned in favor of appellee, upon which judgment was rendered by the court.

Counsel for appellant discuss but one question on appeal to this court. It is contended that the verdict and judgment were not sustained by the evidence, in this: that there is no evidence tending to prove that the place where plaintiff was injured was one of appellant's streets. In addition to the general verdict, which necessarily found that the appellee was injured on one of appellant's streets, the jury answered a question propounded to it by counsel for appellant that the place became a street by dedication of the owners of the land, and that the same was accepted as a street by the appellant. We think there is a large amount of evidence tending to prove that the jury was correct in this answer to the interrogatory, and that the general verdict upon this point was right. There was evidence that the owners of the land graded the street, built a sidewalk, had telegraph poles strung along it, and that the public used it extensively as a street for two or three years before the injury occurred, and that there was at the time of and before the injury a hotel being built and constructed which fronted upon this street. The evidence does not show that appellant had formerly accepted it, or that it had ever caused it to be worked as a street, but, under the authorities, this is not necessary. Later cases are all to the effect that user by the public will amount to an implied acceptance, and cast the burden of maintaining the highway upon the local government, and that the acceptance of the dedication will be implied from the general use by the public as of right. Elliott, Roads & S. § 154, and cases cited. In Summers v. State, 51 Ind. 204, the supreme court said: “The instruction asked by appellant was properly refused. It proceeded solely upon the theory that the road in question could not have been...