Erwin v. Fulk

• Decision Date: 26 March 1884
• Docket Number: 10,572
• Parties: Erwin v. Fulk, Auditor, et al
• Court: Indiana Supreme Court

94 Ind. 235

Erwin v. Fulk, Auditor, et al

No. 10,572

Supreme Court of Indiana

March 26, 1884

From the Monroe Circuit Court.

Judgment reversed.

G. W Friedley, E. D. Pearson, H. H. Friedley, J. R. East and W. H East, for appellant.

J. W Buskirk and H. C. Duncan, for appellees.

OPINION

Elliott, J.

The complaint of the appellant alleges that a petition was presented to the board of commissioners of Monroe county praying for a change in a highway therein described; that such proceedings were had as resulted in an order directing the change to be made as prayed; that the change proposed will alter the direction of the highway through the land of the appellant, so as to divide it into two separate parcels of irregular shape; that it will "require a large amount of additional fencing;" that it will divide into separate parcels "a large bearing orchard;" that if the change is made as proposed, the road will pass on the side or end of his house and barn instead of in front of them as the old road does, and that the change, if made, will destroy his pastures and growing crops. It is also alleged that the order of the board of commissioners is void for the reason, among others, that it does not describe the width of the new highway proposed to be laid out. It is further averred that the road superintendent is in possession of a certified copy of the order of the board, and that the proposed highway "having been ordered to be opened by the board, the superintendent is now threatening to carry out the order of said board and open said highway, but to what width plaintiff is not informed," and that, unless enjoined, he will execute the order of the board and open the highway as directed. A demurrer was sustained to this complaint and the plaintiff appeals.

An injunction will not lie to restrain the execution of an order of the board of commissioners unless the order is void, for the reason that if the proceedings are merely irregular or erroneous, the remedy is by appeal, and, as has been many times decided, where there is such a remedy injunction will not lie. The first question, then, is whether the complaint shows the order to be void, for, if it does not, it is clearly bad. We think it does do this. It was decided in White v. Conover, 5 Blackf. 462, that an order which does not define the width of the proposed highway is absolutely void. This case has been many times followed and approved. Carlton v. State, 8 Blackf. 208; Barnard v. Haworth, 9 Ind. 103; DeLong v. Schimmel, 58 Ind. 64.

A mere naked trespass can not be enjoined, for the law affords an adequate remedy by an action for damages.

In our opinion the present complaint charges more than an ordinary trespass, and also shows that the incidental damages are such as can not be fairly made good in money. The act of the person threatening to enter upon the appellant's land is not that of a mere trespasser, but is that of an officer acting under color of authority. The illegal entry threatened is more than that of a trespasser, for it is that of a public officer having an order of an inferior judicial tribunal directing him to enter, and asserting a right to make a permanent appropriation of the plaintiff's land. Looking to analogous cases, we shall find ample authority for holding that the case is one for injunction. A sale of land for a tax assessment may be enjoined although the assessment is utterly void. An entry on land under claim of condemnation for a public use may be enjoined where the proceedings are without validity. A sheriff's sale may be enjoined where the judgment is void. Many more familiar instances might be referred to, but these are sufficient to show that in closely analogous cases courts do not hesitate to grant injunctions. But there are cases identical in principle with the one at bar, in which a threatened entry on land under color of authority has been enjoined. Winslow v. Nayson, 113 Mass. 411; Frizell v. Rogers, 82 Ill. 109; Champion v. Sessions, 1 Nev. 478; Anderson v. Comm'rs, 12 Ohio St. 635; McArthur v. Kelly, 5 Ohio 139; Floyd v. Turner, 23 Tex. 292. The English cases go much farther than the American cases generally do, and a study of their reasoning has impressed us that they assert the correct doctrine. They will be found collected in Kerr Injunctions, 297, n.

The facts stated in the complaint show the threatened wrongful act to be more than a temporary trespass, for they show it to be an act continuous in its nature, permanently affecting the freehold, and sustained by color of authority from a judicial tribunal. The remarks of Judge Story are justly applicable "For," said this learned judge, "if the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to...