Glendenning v. Stahley

• Decision Date: 18 March 1910
• Docket Number: 21,596
• Citation: 91 N.E. 234,173 Ind. 674
• Parties: Glendenning et al. v. Stahley et al
• Court: Indiana Supreme Court

91 N.E. 234

173 Ind. 674

Glendenning et al. v. Stahley et al

No. 21,596

Supreme Court of Indiana

March 18, 1910

From Wells Circuit Court; Charles E. Sturgis, Judge.

Highway petition by Edward Stahley and others, against which Joseph Glendenning and others remonstrate. From a judgment for petitioners, remonstrators appeal.

Affirmed.

Peterson & Moran and Eichhorn & Vaughn, for appellants.

Abram Simmons, Frank C. Dailey, Daniel D. Heller and Henry B Heller, for appellees.

OPINION

Montgomery, J.

This is a proceeding to locate, lay out and establish a public highway, instituted by appellees before the Board of Commissioners of the County of Adams. Appellants filed a joint remonstrance, on the ground that the proposed highway would not be of public utility, and separate remonstrances claiming damages. Reviewers were appointed, who reported in favor of the public utility of the proposed road, and awarded damages to each of the appellants. The board thereupon made and entered the following order: "And therefore, after due consideration, the board is of the opinion, and therefore finds and adjudges, that said proposed road is of public utility, but is not of sufficient importance to the public to justify the payment of said damages, or any part thereof so assessed out of the county treasury of this county, and that the same shall not be paid out of the county treasury. The board further orders that in case said damages so assessed should be paid by the petitioners or others, or deposited by them with the county treasury for the benefit of said remonstrators in favor of whom said damages are so assessed, or upon a release of the same or thereto in writing, filed with the auditor of the county, then and in that event if said road shall be ordered located, opened and established on, along, and upon the width of thirty feet, as is provided by law governing the establishment of highways and provided for the payment of damages therefor. It is further ordered and adjudged by the board that said highway shall not be opened, used or worked until the damages assessed and heretofore set out shall be paid to the person entitled thereto by the petitioners, or some one of them paid or by them deposited in the county treasury for such remonstrators' use or consent thereto in writing filed with the auditor of the county."

Appeals from this order were taken to the Adams Circuit Court, by both appellees and appellants. The venue was changed, upon application therefor, to the Wells Circuit Court, where a trial by jury resulted in a verdict in favor of the public utility of the proposed road, and denying to appellants any damages.

It is alleged that the trial court erred in overruling appellants' motions, (1) to dismiss appellees' appeal to the circuit court, (2) for a venire de novo, (3) for a new trial, (4) in arrest of judgment, and (5) to modify the judgment.

During the trial and at the close of the introduction of evidence on behalf of appellees, appellants filed a motion to dismiss appellees' appeal, the ground of the motion being that no final decision of the board of commissioners had been made prior to the taking of such appeal. The order hereinbefore set out is unskilfully drawn, and seems to contain clerical errors affecting its grammatical sense, but it finally determined the public utility of the proposed road, and the amount of damages which appellees or others interested in the road should pay if it was to be recorded and opened as a public highway. Appellees were aggrieved by the award of damages made in favor of appellants, and desired to appeal therefrom and contest in the circuit court the question of benefits and damages. No further proceedings or order was contemplated until after payment of the damages so assessed and allowed, and hence appellees were entitled to prosecute their appeal from this order, notwithstanding the lack of apt legal phraseology in its expression. The order was manifestly not intended as a mere interlocutory decision, and is sufficient in form and substance to justify an appeal. This being true, the overruling of appellants' motion to dismiss appellees' appeal was clearly harmless, since their own appeal from the same order upon the questions of both public utility and damages was not dismissed, and the cause must, at all events, have proceeded to final judgment just as it did upon both appeals.

Appellants moved for a venire de novo, on the ground that the verdict is uncertain, indefinite and ambiguous, and does not cover all the issues. The verdict is in the words following:

"We, the jury, find for the petitioners. We further find that the petition is signed by twelve freeholders of Adams county, Indiana, six of whom reside within the immediate neighborhood of the proposed highway and that the proposed highway will be of public utility, and that neither of the remonstrators has sustained any damages."

The verdict clearly covers the issues. The precise route of the proposed road is given in the petition, and the same was laid out thirty feet in width by the viewers. The statute provides that no highway shall be laid out less than thirty feet wide, and requires the order laying out any highway to specify its width. § 7663 Burns 1908, Acts 1905, p. 521, § 15. The provisions of this statute were fully complied with in the order and judgment of the court, and it was not necessary that the verdict should include such details. Rominger v. Simmons (1882), 88 Ind. 453; Green v. Elliott (1882), 86 Ind. 53, 66, 67.

Appellants' motion to modify the judgment, by striking out so much thereof as sets forth the description and width of the highway, was, for the reason just stated, rightly overruled. The provision directing the proper trustee to cause the highway to be opened and kept in repair, and requiring the auditor of Adams county to transmit a copy of this order and judgment to such trustee, was entirely proper, and afforded appellants no grounds of complaint.

Appellants, in their motion for a new trial, complain of the giving of instruction eleven, by which the jury was advised, among other things, that if it appeared from the evidence that the proposed highway would be of convenience, the mere fact, if true, that it would facilitate the convenience of one or more persons over that of others would not deprive it of its public character or utility. It is insisted that the convenience necessary to the taking of private property for a public use must be the public convenience. This is true, but in this instruction the court was not attempting to give a complete definition of the terms public utility or convenience, as used in connection with the exercise of the power of eminent domain, but the dominant idea here advanced appears to be that if the public utility of the proposed taking is established, then the mere fact that the road will be of special advantage or convenience to certain individuals cannot destroy its public character. This proposition is sound. Richland School Tp. v. Overmyer (1905), 164 Ind. 382, 73 N.E. 811.

By instructions five and six, given at the request of appellants, the jury was fully and accurately informed as to what facts are necessary to establish such public utility or...