Gotshall v. Cass County

• Decision Date: 10 June 1992
• Docket Number: No. 09A02-9201-CV-6,09A02-9201-CV-6
• Citation: 593 N.E.2d 210
• Parties: Raymond P. GOTSHALL and Betty J. Gotshall, Appellants-Plaintiffs, v. CASS COUNTY, Indiana, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 210

593 N.E.2d 210

Raymond P. GOTSHALL and Betty J. Gotshall, Appellants-Plaintiffs, v. CASS COUNTY, Indiana, Appellee-Defendant.

No. 09A02-9201-CV-6.

Court of Appeals of Indiana Third District.

June 10, 1992.

Transfer Denied Sept. 2, 1992.

Robert Leirer Justice, Logansport, for appellants-plaintiffs.

John R. Hillis, Hillis, Hillis & Burns, Logansport, for appellee-defendant.

HOFFMAN, Judge.

Appellants-plaintiffs Raymond and Betty Gotshall appeal the trial court's judgment in favor of Cass County, Indiana.

One issue is raised for review: whether Cass County is obligated to maintain Murphy Road, which is located in Cass County.

In October 1990, plaintiffs (Gotshalls) filed an amended complaint for declaratory judgment. The Gotshalls requested the trial court to declare whether Murphy Road was a private or public road and if it was a public road, to declare that Cass County had a duty to maintain it. It was not disputed that the Gotshalls had standing to bring this action and that Murphy Road was located in Cass County, outside the city limits of Logansport.

On July 26, 1990, the trial court entered its order finding that, while Murphy Road was platted as a private road, its use as a public road over the last 100 years rendered it a public road. However, the trial court held that the designation of Murphy Road as a public road did not mean that Cass County was obligated "to construct and maintain an improved roadway on Murphy Road."

The Gotshalls filed a motion to correct error. The trial court affirmed its decision stating that plaintiffs had conceded that Cass County had no duty to "construct and maintain an improved roadway on Murphy Road."

To begin with, both the trial court's order and Cass County (County) on appeal state that the Gotshalls failed to follow the petition procedure mandated by statute. Neither the trial court nor the County provided citation to these statutes. Even a repealed statute cited by the County does not obligate a party to petition for maintenance of a county road. IND.CODE Sec. 8-17-1-4 (repealed by P.L.113-1989, sec. 11). Upon review of the statutes pertaining to county highways, this Court can find no statutes requiring the Gotshalls to file a petition with the County requesting it to maintain its own road. In fact, case law directs that an opposite conclusion must be reached.

No one questions that there was an implied dedication of the easement, Murphy Road, to the public. See 2 Thompson on Real Property Sec. 370 (1980 Replacement). The trial court found that there was an implied acceptance of this dedication by the public's use of the road for 100 years. See 2 Thompson on Real Estate Sec. 372 (1980 Replacement).

The County argues that the acceptance had to be a formal acceptance by the County. This is not true. The Court in Smolek v. Bd. of Co. Comm'rs (1979), 179 Ind.App. 603, 386 N.E.2d 997, followed the implied acceptance theory when it held that a public highway could be established by use of the public for a period of twenty years. ¹ However, the decision in Smolek did not address the duty of the county to maintain the public highway once it was accepted.

This issue was addressed in City of Hammond v. Maher (1903), 30 Ind.App. 286, 65 N.E. 1055. The City of Hammond was sued for failure to keep one of its streets in repair. The question presented to the trial court was whether the street was owned by the city. The trial court found that the street was owned by the city due to its implied acceptance of the road by years of public use. "Later cases are all to the effect that user [sic] by the public will amount to an implied acceptance, and cast the burden of maintaining the highway upon the local government, and that the acceptance of the dedication will be implied from the general use by the public as of right." Id....