Cromer v. State

• Decision Date: 15 December 1898
• Docket Number: 2,537
• Citation: 52 N.E. 239,21 Ind.App. 502
• Parties: CROMER v. THE STATE
• Court: Indiana Appellate Court

52 N.E. 239

21 Ind.App. 502

CROMER v. THE STATE

No. 2,537

Court of Appeals of Indiana

December 15, 1898

Rehearing denied January 27, 1899.

From the Cass Circuit Court.

Affirmed.

Frank Swigart, for appellant.

W. A Ketcham, Attorney-General, and C. C. Hadley. for State.

OPINION

ROBINSON, J.

Appellant appeals from a judgment assessing a fine against him for obstructing a highway. The place obstructed is an alley in the city of Logansport. A number of errors have been assigned and discussed at length in appellant's brief.

The first, second, third, fourth, eighth, ninth, and tenth errors assigned question the court's action in admitting certain evidence and refusing to admit certain evidence offered by appellant. The fifth, sixth, seventh, and fifteenth errors assigned question the action of the court in giving certain instructions, and refusing to give certain other instructions. The eleventh error assigned is misconduct of the court during the trial, and the twelfth is misconduct of counsel in the argument of the case to the jury. The thirteenth error is the action of the court in limiting the time of appellant's argument to the jury. These assignments of error present no question. Such matters should be stated as causes for a new trial, in a motion therefor, and cannot be assigned independently as errors. See Bailey v. Boyd, 59 Ind. 292; Baecher v. State, ex rel., 19 Ind.App. 100, 49 N.E. 42, and cases there cited.

The fourteenth and only remaining error assigned is overruling appellant's motion for a new trial. The first four reasons in the motion for a new trial are that the verdict of the jury is contrary to the law and the evidence, and is not sustained by sufficient evidence. Appellant's counsel has discussed at some length the evidence on the question as to whether or not there was a public highway at the point where the obstruction was placed. No good purpose could be subserved by setting out the evidence of the various witnesses. A number of witnesses testified that the alley in question, prior to the obstruction complained of, had been used continuously by the public for more than twenty years. In such cases it is not necessary to show a dedication. There is evidence which shows a continuous, uninterrupted use by the public for more than twenty years, and that during that time the use of the way was not disputed by any owner of the real estate. It is a well settled rule in this State that a judgment will not be reversed either in a civil or a criminal case where there is evidence which fairly supports the verdict of the jury on every material point. In such case the appellate tribunal cannot assume to weigh the evidence and interfere with the result reached by the trial court. McCarty v. State, 127 Ind. 223, 26 N.E. 665, and cases there cited. Winslow v. State, 5 Ind.App. 306, 32 N.E. 98, and cases there cited.

The fifth reason for a new trial is the giving of certain instructions requested by the State. It is said by appellant's counsel that the first instruction, while in some parts correctly stating the law, does not go far enough. It is a well settled rule that, where an instruction is correct so far as it goes, the fact that it does not go further, and include some other proposition will not make it erroneous. If a party thinks the instruction incomplete, he should ask a special instruction covering the omitted matter and reserve an exception on the court's refusal to give the same. Cincinnati, etc., R. Co. v. Smock, 133 Ind. 411, 33 N.E. 108; Du Souchet v. Dutcher, 113 Ind. 249, 15 N.E. 459; Powers v. State, 87 Ind. 144.

The fifth and sixth instructions were upon the question of reasonable doubt. These instructions correctly state the law, and one of them seems to be a verbatim copy of an instruction which has often been expressly approved by the supreme Court.

The eighth instruction correctly told the jury what is necessary to establish a highway by dedication. The instruction simply undertook to state an abstract principle of law, and no reference is made in it to any fact or facts in controversy in the case being tried.

The court correctly told the jury, in the twelfth instruction, that, in order to constitute a dedication, it is not necessary that there be a grant or conveyance by deed or writing on the part of the owner of the land. "A dedication of land need not be evidenced by a written conveyance." City of Indianapolis v. Kingsbury, 101 Ind. 200.

There was no error in giving the thirteenth instruction in which the jury was told that, "if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of the owner as constituting a dedication." Faust v. City of Huntington, 91 Ind. 493.

The fourteenth and sixteenth instructions were upon the question of implied dedication, and that certain acts of the landowner, if shown to exist, would estop the landowner from asserting that there was no intention to dedicate; that an implied dedication was founded upon the doctrine of equitable estoppel; and that it might be established by evidence of conduct such as allowing the undisputed use of the land by the public, and by standing by and without objection seeing improvements made with reference to it as a street or alley. There was some evidence upon which to base these instructions, and so far as they undertook to state principles of law they were certainly correct. City of Indianapolis v. Kingsbury, supra.

The court told the jury in the twenty-fourth instruction, that "the unopposed use of a highway by the public over the land of an individual who is cognizant of the fact, for a short space of time, may be sufficient to raise the presumption of a dedication. Indeed, the use of land for a highway for such a length of time that public accommodations and private rights might be materially affected by an interruption of the enjoyment would be evidence that the landowner intended to dedicate to the public." The principles of law set forth in this instruction have been recognized to be the law in this State in Mauck v. State, 66 Ind. 177. See Town of Marion v. Skillman, 127 Ind. 130, 26 N.E. 676.

Counsel for appellant, in many of the instructions given by the court, finds fault with certain sentences contained in certain instructions. The rule is well settled that the instructions must be considered as a...