Dunn v. State ex rel. Eakin
| Decision Date | 06 October 1904 |
| Docket Number | 20,384 |
| Citation | 71 N.E. 890,163 Ind. 317 |
| Parties | Dunn, Mayor, et al. v. State, ex rel. Eakin |
| Court | Indiana Supreme Court |
From Monroe Circuit Court; J. B. Wilson, Judge.
Action by the State of Indiana, on relation of Julia S. Eakin against Frank J. Dunn, as mayor of Bloomington, and the common council of said city, for a writ of mandate to compel them to remove an obstruction to an alley. Judgment for plaintiff, and defendants appeal.
Dismissed.
W. E Hottel, R. W. Miers, Edwin Corr and D. K. Miers, for appellants.
J. R East and R. H. East, for appellee.
The relatrix prosecuted this action to secure a writ of mandamus to compel appellants, as mayor and members of the common council of the city of Bloomington, Monroe county, Indiana, to remove obstructions which had been placed across a certain alley of said city. The obstructions consisted of a fence and gate which had been built or constructed across said alley at a point thereon near certain real estate claimed to be owned by one Mary Stewart, and had been maintained as an obstruction of said alley since the 12th day of May, 1902. They served to prevent the free use by the public in general of the alley, and also served to obstruct the use thereof by the said relatrix, to her alleged damage. The petition avers a demand by relatrix that appellants remove the obstructions, with which demand it is averred they refused to comply. Demurrers to the petition and an alternative writ were overruled. Appellants filed a return in three paragraphs to the alternative writ of mandate. The first was a general denial. By the second paragraph they alleged "that a bona fide dispute existed as to the legal existence of the said alley; that one Mary Stewart claimed to be the absolute owner of the strip of ground as described in the complaint, and that she claimed that neither the public nor the relatrix had any right to use the alley in question; that the alley was but a private way, and was used as such." The third paragraph averred that the appellants had investigated the matter in controversy, and feared that if they removed the obstruction complained of they would be trespassing, and therefore they had refused to take any further action. A demurrer to the return was overruled. Appellee replied that the alley had been dedicated to the use of the public by abutting owners, and that Mary Stewart made no claim thereto prior to May 12, 1902. It is further alleged that no bona fide dispute over the alley exists. Upon the issues joined there was a trial by jury, and a verdict returned awarding the relatrix a peremptory writ of mandate. Over appellants' motion for a new trial, judgment was rendered to the effect that the writ be issued commanding appellants, as officers of the city of Bloomington, and as members of the common council thereof, to remove, or cause to be removed, from the alley in question, the obstructions in controversy. From this judgment appellants have appealed, and have assigned numerous rulings of the court as errors.
Appellee has filed a motion to dismiss the appeal on the ground that, since it has been taken, all of the obstructions across the alley which appellants were commanded to remove by the peremptory writ have been removed from said alley, and that it is now open to the free use and enjoyment of the public. The motion is supported by affidavit. The verified facts, together with those disclosed by the record in the case, show that appellants upon the trial claimed, as a defense to the action, that one Mary Stewart asserted or claimed to be the owner of the strip of ground over which the alleged alley passed at the point where the obstructions in question had been placed. She denied that the alley was open to the public. It appears that, under the claim that she was the owner of the strip of ground in controversy, she had caused to be built and placed across the alley the obstructions in dispute. It is established, however, that since this appeal was taken, she has, by a quitclaim deed, conveyed said strip of ground to one Edward Wagner, who, after said conveyance, removed all of the obstructions in controversy from the alley, and has opened it to the use of the public in general, and it is now being used by the public in like manner as other public alleys of said city are used.
It appears that the only question involved in this action is the right of the relatrix...
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