Gillespie v. Duling

• Court: Indiana Appellate Court
• Writing for the Court: ROBY
• Citation: Gillespie v. Duling, 41 Ind.App. 217, 83 N.E. 728 (Ind. App. 1908)
• Decision Date: 05 February 1908
• Docket Number: No. 6,373.,6,373.
• Parties: GILLESPIE v. DULING.

41 Ind.App. 217

83 N.E. 728

GILLESPIE

v.DULING.

No. 6,373.

Appellate Court of Indiana, Division No. 2.

Feb. 5, 1908.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action by James M. Gillespie against John M. Duling. Judgment for defendant, and plaintiff appeals. Reversed.Henry Elliott, for appellant. Custer & Cline, for appellee.

ROBY, C. J.

Suit by appellant to enjoin appellee from fencing up an alleged roadway. A demurrer to the complaint was overruled, and an answer in general denial filed. The case was tried by the court, and a finding made for appellee, and judgment rendered against the appellant for costs.

The facts established by the evidence are substantially as shown by the map and the following paragraph:

Image 1 (2.6" X 1.66") Available for Offline Print

Appellant and appellee are adjoining landowners in Grant county. A public road known as the “Muncie Pike” (A-B) runs diagonally through appellee's land, while, other than the roadway which he now seeks to prevent being closed and fenced up (C-D), appellant has no lawful means of ingress or egress. Many years prior to the institution of this action a public highway ran from the Muncie Pike along the north line of plaintiff's farm, and thence to the southwest (G-D-F-E). The old road was several years ago legally vacated. Since that time plaintiff has used both the roadway in question (C-D) and a private right of way (D-G) over the contiguous land east of his farm, by license of its owner (Garrison), in coming and going to and from his property. The roadway, the continued use of which appellant seeks, was stated by a witness 75 years of age to have been traveled by wagons and buggies “ever since I was a boy.” Many other witnesses testified that the road had existed 30 or 40 years, or longer. The only testimony which can be regarded as conflicting with this was that of William M. Duling, father of appellee, and former owner of the land, who said: “I don't think when I bought that land 17 years ago any wagon road there. I think just a path that you could go across.” He further testified as follows: “Then old Mr. Furnish had land right south of John's 40, and he cut that road through there for convenience for him to go to the Muncie Gravel Road”-and also that the road had been cut “only a short time, probably a few weeks,” before he discovered it; that he was frequently on his farm during that time; also that he never gave any one any authority and never prevented any one from crossing it. The road runs through an open woodland, and has never been graded. Deviations have been made in the traveled track to avoid trees and mud; but the general travel has always been confined to a strip not wider than 3 rods, according to the testimony of the appellee, and a somewhat narrower space according to some other testimony. Its termini have remained unchanged. It was a near cut to Fairmount for people who formerly traveled the old road, since vacated.

For reversal the single assignment of error is that the court erred in overruling appellant's motion for a new trial. This motion is predicated on the grounds that the decision of the court was not sustained by sufficient evidence, and was contrary to law. The facts stated above show a right to a public roadway. A highway may be established by user, and the use of land for such purpose for 20 years is a complete bar to the right to dispute such use. Section 6762, Burns' Ann. St. 1901; L., N. A. & Chi. R. Co. v. Etzler, 3 Ind. App. 562, 565, 30 N. E. 32;Blumenthal v. State, 21 Ind. App. 665, 51 N. E. 496;Ft. Wayne v. Combs, 107 Ind. 75, 79, 7 N. E. 743;Strong v. Makeever, 102 Ind. 578, 1 N. E. 502, 4 N. E. 11;Debolt v. Carter, 31 Ind. 355;Hart v. Trustees, 15 Ind. 226;Epler v. Niman, 5 Ind. 459; Elliott on Roads and Streets, § 175. A dedication of a highway may be presumed from continued use of land for such purpose by the public, with the knowledge of the person owning the same, and without objection on his part, although such use has not continued 20 years, if it has continued a considerable time, and the circumstances otherwise are consistent with an intention to dedicate. Campbell v. O'Brian, 75 Ind. 222;Evansville v. Evans, 37 Ind. 229;Holcraft v. King, 25 Ind. 352;State v. Hill, 10 Ind. 219;Hays v. State, 8 Ind. 425;Phipps v. State, 7 Blackf. 512; Elliott on Roads and Streets, § 161. These two propositions express the law as it now exists in this state. Strictly speaking, the common law permits individuals to gain easements only by prescription, and the public to gain them only by dedication. It does not provide for the gaining of easements by the public by prescription; continued user being evidence merely of a dedication. But the statute above cited (section 6762, Burns' Ann. St. 1901) establishes highways by 20 years' user, regardless of other evidences of dedication. Considerable confusion has resulted in the reports from this double power of the public; but the cases above cited, together with the following, establish the power of the public to acquire easements under both methods, though inaccurate and incorrect statements are made in several of them: McClaskey v. McDaniel, 37 Ind. App. 59, 74 N. E. 1023;Pittsburg, etc., Co. v. Crown Point, 150 Ind. 536, 50 N. E. 741;Marion v. Skillman, 127 Ind. 130, 26 N. E. 676, 11 L. R. A. 55;Ross v. Thompson, 78 Ind. 90;Mauck v. State, 66 Ind. 177;Summers v. State, 51 Ind. 201. As said in Small v. Binford (No. 6,202) 83 N. E. 507, it is not the policy of the law to cut off the egress and ingress of landowners to and from their property. After the vacation of the old road, which gave Gillespie an outlet, the presumption is in favor of the way in question being a road rather than against it. The fact that this way is not open at both ends and furnishes access and egress to but one property owner does not prevent its being a public highway. Moore v. Auge, 125 Ind. 562, 25 N. E. 816;Adams v. Harrington, 114 Ind. 66, 14 N. E. 603;Washington Ice Co. v. Lay, 103 Ind. 55, 2 N. E. 222. The road is open to public use, and the word “public” in this connection means “all those who have occasion to use” the road. Village of Grandville v. Jenison, 84 Mich. 54, 47 N. W. 600. The law does not fix the number of persons who must travel upon a road to determine its existence. Small v. Binford, supra; L., N. A. & Chi. R. Co. v. Etzler, supra. The fact that the course of the road deviates from a straight line to avoid trees and mud is immaterial. It is sufficient if the line of travel remains substantially unchanged. Small v. Binford, supra; Ross v. Thompson, supra.

Appellee contends that the plaintiff's complaint “proceeds upon the theory of 20 years' adverse user by the public, and upon that theory appellant must recover, if at all.” The complaint, however, also states facts which show a dedication by user, and the case cited by appellant is therefore not applicable. It is a well-settled rule that this court...