Hamilton v. State
| Decision Date | 18 May 1886 |
| Docket Number | 13,073 |
| Citation | 7 N.E. 9,106 Ind. 361 |
| Parties | Hamilton v. The State |
| Court | Indiana Supreme Court |
From the Decatur Circuit Court.
Judgment reversed.
C Ewing and J. K. Ewing, for appellant.
F. T Hord, Attorney General, and W. B. Hord, for the State.
Mitchell J. Elliott, J., did not participate in the decision of this case.
The appellant was prosecuted and convicted upon an information in which he was charged with having, in January, 1885, unlawfully obstructed a certain public highway in Decatur county, by erecting a fence in and along the highway described.
Several questions are made, but one which controls the case finally is, whether upon the undisputed facts the conviction was right? We have concluded it was not, and, therefore, without considering several incidental questions, proceed briefly to state the facts so far as necessary and our conclusions upon them. The highway, the obstruction of which the appellant was charged with, is commonly known as the "Michigan Road." The laying out and opening of this road had its inception in a treaty between the government of the United States and the Potawatamie Indians, which was made on the 26th day of October, 1826. By this treaty the Indians ceded to the United States a strip of land, one hundred feet wide, commencing at Lake Michigan and extending by the way of Indianapolis to the Ohio river. It was provided in the treaty that the General Assembly of the State of Indiana should have the right to establish a highway on the land thus ceded. By an act approved January 29th, 1831, the General Assembly made provision for locating and opening a highway of the width of one hundred feet on the strip ceded.
The evidence in this case tended to show that soon after the passage of the above mentioned act, the road was actually opened one hundred feet wide through that part of Decatur county at which the alleged obstruction occurred.
Some thirty years or more before the prosecution was commenced, the opinion prevailed, as the testimony shows, that the Legislature had authorized the width of the Michigan road to be reduced, and from that on, as fences were built and rebuilt, the road was made narrower generally, all along through that part of the county.
The appellant's father became the owner of the farm now owned by appellant, some twenty-two years or more before the information in this case was filed. At that time, a worm fence which then needed rebuilding occupied, as near as can be remembered, the same line along the highway in dispute, as is now occupied by the fence which is the obstruction complained of. From time to time as the fence needed rebuilding it has been rebuilt on the same line. About two years before the information was filed, the appellant, having come into possession of the farm, commenced replacing the worm fence with one made of plank and wire, which all agree is not farther out than the old fence was. The highway is by common consent as wide now as it has been for twenty-five years or more. No one claims, so far as we can discover, that the appellant's fence is out farther than the fences of adjacent land-owners in that vicinity, or that the road is not of a uniform width for miles either way.
The public having acquiesced in the occupation of the highway by the adjoining land-owners for the period of time above indicated, will the law presume an abandonment of so much of it as has been thus occupied? At all events, is not the public, in view of its long...
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