Curless v. State

• Decision Date: 16 February 1909
• Docket Number: No. 21,289.,21,289.
• Citation: 172 Ind. 257,87 N.E. 129
• Parties: CURLESS v. STATE.
• Court: Indiana Supreme Court

172 Ind. 257

87 N.E. 129

CURLESS

v.STATE.

No. 21,289.¹

Supreme Court of Indiana.

Feb. 16, 1909.

Appeal from Circuit Court, Howard County; J. F. Elliott, Judge.

John F. Curless was convicted of maintaining a public nuisance by obstructing a public highway, and he appeals. Affirmed.

Harness, Moon & Voorhis, for appellant. James Bingham, Blacklidge, Wood & Barnes, E. N. White, W. H. Thompson, and A. G. Cavins, for the State.

MONKS, J.

Appellant was convicted on a charge of maintaining a public nuisance by the obstruction of a public highway. The only error assigned is that the court erred in overruling appellant's motion for a new trial. It appears from the record that in 1903, appellant and others filed a petition before the board of commissioners of Howard county to vacate a public highway running across the land of appellant, and establish the same on the half-section line dividing his land and the land of one Downs. Such proceedings were had that said old highway was vacated, and a highway established 30 feet wide, one-half on each side of said half-section line. At the time said highway was established, there was, and had been for 10 years or more, a partition fence dividing said land of appellant from the land of said Downs. In executing the order establishing said highway the highway officer assumed that said partition fence was on said half-section line, and opened said highway 30 feet wide, 15 feet on each side of said line, as shown by said fence, and appellant and Downs each set his fence back at least 15 feet from said fence on his own land, as required by said order. Appellant was present when his employés set his fence back. After the fences were set back, the road supervisor, in the fall of 1904, cut down some banks, blew out stumps, filled up the holes in said highway, and did some other work to make the road passable for travel, and the same was open for travel and used by the public. In 1907 appellant built a fence which encroached upon the highway on the south side 7 or 8 feet as opened by said road officer, and crossed the side ditch made by said officer in the highway on the south side thereof. This is the obstruction of the public highway alleged in the affidavit in this case. Appellant's defense, as stated by his counsel, was that the highway was not opened on the line where the same was established; that if said highway had been opened on the half-section line where established, said fence would not encroach upon, or be within, the limits of the highway; that therefore appellant was not guilty of obstructing said highway.

It does not follow from the order establishing said highway that the same was laid out by the viewers, and established by the board of county commissioners, on the half-section line, if the same was not the line dividing the lands of appellant from the lands of Downs. Section 6743, Burns' Ann. St. 1901, provides “that where the road is laid out upon the line dividing the lands of two individuals, each shall give one-half of the road.” The petition, report of the viewers, and the proceedings and entries in said cause, when read in the light of the statute, the location of said partition fence, and the other surroundings and circumstances of the case, show that the viewers laid out and located said highway on the line dividing the land of appellant from the land of Downs, whether the same was on the half-section line or not. It is settled that parties, by acquiescing in boundary lines for 20 years, or by conduct fixing such lines, may be estopped from averring that they are not the true lines. Cleveland v. Obenchain, 107 Ind. 591, 592, 8 N. E. 624, and cases cited; Wingler v. Simpson, 93 Ind. 201, 203, 204, and cases cited; Brown v. Anderson, 90 Ind. 93, 99;Main v. Killinger, 90 Ind. 165, 167, and cases cited. If by continuous adverse possession, or otherwise, said Downs had title to said land to the line marked by said partition fence, then there was no mistake, on the part of the road officer, in opening said highway, one-half on each side of said line, without reference to where the true half-section line may be. Whether or not said Downs has title to the land marked by said partition fence by 20 years' continuous adverse possession, or otherwise, and whether the same is the true half-section line, cannot be tried in this case. Persons, whose land abuts upon a public highway established, as the highway in this case was, by a proceeding brought for that purpose, cannot, after the highway is opened under such order by the proper officer, and they have set back their fences, and the road as opened has been worked and used by the public, successfully defend a charge of obstructing the same by showing that the highway was, by mistake or otherwise, not opened upon the proper line. Holden v. Cole, 1 Pa. 303, 307;Furniss v. Furniss, 29 Pa. 15;McMurtie v. Stewart, ...