Gipson v. Heath

• Decision Date: 18 October 1884
• Docket Number: 11,101
• Citation: 98 Ind. 100
• Parties: Gipson et al. v. Heath et al
• Court: Indiana Supreme Court

98 Ind. 100

Gipson et al. v. Heath et al

No. 11,101

Supreme Court of Indiana

October 18, 1884

From the Tippecanoe Circuit Court.

R. P Davidson, J. C. Davidson and W. D. Wallace, for appellants.

M Jones, J. L. Miller and W. F. Severson, for appellees.

OPINION

Black C.

The appellees presented their petition to the board of commissioners of Tippecanoe county for the location and construction of a free gravel road in said county, pursuant to the act of March 3d, 1877, R. S. 1881, section 5091, et seq., and a bond conditioned for the payment of the expenses of the preliminary survey and report, if the proposed improvement should not be finally ordered, having been filed, the board of commissioners appointed viewers and an engineer, who made a report, which they subsequently amended.

The board ordered the making of the improvement, appointed an engineer to superintend the performance and completion of the work, and appointed a committee to apportion the estimated expense of the improvement upon the real property to be benefited.

Thereupon those who are the appellants here filed with the county auditor a bond and affidavits for appeal from the decision of said board to the circuit court, where there was a trial by jury, resulting in the return of a special verdict, upon which, after the overruling of various motions made by the appellants, the court rendered judgment in favor of the appellees.

Under an assignment that the court erred in overruling the motion of the appellants for a new trial, they have discussed the action of the court in giving certain instructions to the jury, and in refusing to give certain instructions at the request of the appellants.

There is no bill of exceptions in the record, and it is not shown that the instructions set out by the clerk as having been given, or as having been asked by the appellants and refused, were filed as required by the statute. R. S. 1881, section 533; Supreme Lodge, etc., v. Johnson, 78 Ind. 110. Besides, as to the instructions refused, if they were shown to have been filed, it would be presumed in favor of the action of the court, the evidence not being in the record, that they were not applicable to the evidence.

Under assignments that the court erred in overruling the motion of the appellants for judgment upon the special verdict, and in overruling their motion in arrest of judgment, they have discussed certain questions, which we will examine.

The petition stated the points between which the improvement was asked within said county, as follows: "Commencing at the southwest corner of section 15 in township 23 north, range 4 west, running thence east on county road, as now laid out, to the southeast corner of the southwest quarter of said section 15; thence east for a distance of one mile on the north side of the northeast quarter of section 22 and the northwest quarter of section 23, both in township 23 north, range 4 west, to the northeast corner of the northwest quarter of said section 23, the roadway to be constructed entirely on said northeast quarter of section 22, and the northwest quarter of said section 23, running thence north along and upon the county road about three-eighths of a mile, thence with said road in a northeasterly direction across and upon the county bridge over Wild Cat Creek to the east side of section 13 in township 22, range 4 west, to the northwest corner of said section 13; thence east along and upon the county road to the northeast corner of said section 13, thence north along the county road on the east side of section 12 in said township and range, to the northeast corner thereof, thence east along and upon the county road to the southeast corner of section 4 in township 23 north, range 3 west, thence east on the section line dividing sections 3 and 10 to the southeast corner of section 3, township 23, range 3 west, thence north along and upon the county road on the west side of section 2 in township 23, range 3 west, and section 35 in township 24, range 3 west, to the northwest corner of said section 35, thence east on the section line dividing sections 26 and 35 and sections 25 and 36, to the Carroll county line."

In the special verdict, having shown, among other things, the line of the proposed improvement as laid out by the viewers and surveyor, the jury further found, "that between the sections 10 and 3 in township 23 north, of range 3 west, said improvement has been laid out on new ground, for the purpose of straightening said old highway; * * that at east end of said iron bridge across Wild Cat Creek said proposed improvement has been laid out on new ground for the distance of twenty-two 70/100 chains, thereby shortening and straightening the old highway; * * that for a mile and a quarter west of the northeast corner of the northwest quarter of section 23, town. 23, range 4 west, said proposed improvement is laid out on new ground, for the purpose of straightening and obtaining a better route; * * * that all the rest of the proposed improvement is located on two or more existing highways."

While it appears from the petition and from the special verdict that the proposed improvement will be one continuous line of gravel road, the petition does not show that it will be all upon previously existing public highways, and the verdict shows affirmatively that certain portions will be on "new ground," for the purpose of straightening, or shortening and straightening, the old highway, or for the purpose of straightening and obtaining a better route.

It is earnestly contended, and this is the principal question argued, that the free gravel road which the county commissioners are by said statute authorized to locate and construct must be upon an existing public highway, and that the only authority to take private property is for the incidental purpose of straightening some crooks in the existing highway, and that as it appears that in this proceeding certain intermediate portions of the road, one portion a mile, another a mile and a quarter, and another twenty-two and 70/100 chains in length, will not be upon previously existing highways, but will be upon "new ground," therefore the county board had no jurisdiction of the subject-matter.

The statute (section 5091) gives the board of commissioners "power, as hereinafter provided, to lay out, construct or improve, by...