Gwynn v. Homan

• Court: Indiana Supreme Court
• Writing for the Court: Perkins, J.
• Citation: Gwynn v. Homan, 15 Ind. 201 (Ind. 1860)
• Decision Date: 05 December 1860
• Parties: Gwynn v. Homan

15 Ind. 201

Gwynn v. Homan

Supreme Court of Indiana

December 5, 1860

APPEAL from the Hendricks Common Pleas.

The judgment is reversed, with costs. Cause remanded for new trial.

C. C Nave and J. Witherow, for appellant.

OPINION

Perkins, J.

Homan sued Gwynn for obstructing a street in the town of Cartersburg, whereby special damages resulted to the plaintiff. Trial upon a general denial; judgment for the plaintiff.

The case turns upon the question, whether the place obstructed was a public street. All the evidence given upon the trial is in the record; and we think it fails to establish the fact of the street.

What is evidence of the existence of a street in a town or city? How may the fact be proved? It may be proved:

1. By a public plat of the town or city, on which the street is laid down, together with user by the public of the designated ground as a street. The mere platting by the proprietor, without a sale of lots adjoining, or user by the public, does not seem to be sufficient. See United States v. Chicago, 7 How. (U.S.) 185. And where it becomes necessary for a party to rely on the fact of a dedication by a plat, to make out the existence of a street, the plat, or a record of it, is the best evidence of the fact. It is not necessary, in such case, to prove that the town or city is incorporated; for an unincorporated place may have public streets or highways.

2. The fact of a street, or highway, may be proved, by showing a parol dedication to the public, accompanied by user by the public. See Ind. Dig., infra.

3. Such fact may be shown by proof of acts on the part of the owner such as selling lots on opposite sides of a strip of ground suitable for a street or highway, and standing by and seeing it used by the public as such; or standing by and...