Haynes v. Thomas
| Decision Date | 27 November 1855 |
| Parties | Haynes and Another v. Thomas |
| Court | Indiana Supreme Court |
From the Fountain Circuit Court.
The judgment is affirmed with costs.
B. F Gregory J. R. M. Bryant and R. A. Chandler for appellant.
R. C Gregory and R. Jones for appellee.
Case by Thomas against Haynes and Dickson, for a nuisance. The declaration contains two counts. The first alleges that the plaintiff is the owner of lots two, three and four, in the town of Williamsport; that on the 11th of December, 1828, the proprietor, by a plat of the town, dedicated to the public all the ground between said lots and the Wabash river, as a public street, and sold said lots with reference to said dedication; that said ground had been used as a street from that time until the 1st of April, 1851, when the defendants obstructed the street by excavating the earth and erecting walls, by which the plaintiff was obstructed in the free use of the street for passage from his lots to the river. The second count is like the first, except that it states the lots to be in the occupancy of the plaintiff's tenants, laying the damages to the reversion.
Plea, not guilty.
The cause was removed from the Warren to the Fountain Circuit Court, by change of venue, where there was a jury trial. Verdict for the plaintiff for 92 dollars. Motion for a new trial overruled, and judgment.
The appellants complain that after the evidence was closed, and the Court had instructed the jury, they were permitted to separate until the next morning. In civil suits, this may be done in the discretion of the Court. 2 R. S. 1852, p. 112, sec. 329. There is nothing to show that the discretion was abused; nor was the proceeding excepted to at the time.
The plaintiff, to prove title to the lots in question, offered in evidence a deed from Harrison, the proprietor of the town, and his wife, to one Canby, from whom the plaintiff derived title. A witness testified that he was acquainted with Harrison eighteen or twenty years ago, and with his hand-writing, having frequently seen him write; that he thought the signature to the deed was his hand-writing, but would not be positive; and that he was unacquainted with his wife's writing. It is objected that the deed was not sufficiently proved, as to Harrison, and not at all, as to his wife. The deed bears date in 1837, and near the time when the witness was acquainted with the grantor's writing. No one can testify positively to a writing unless he saw it written. Proof of hand-writing, by inspection, is not susceptible of greater certainty than was attained in this instance. There were no subscribing witnesses, and the deed was made in a foreign state. Under the circumstances, the proof was sufficient. Whether it was executed by the wife or not, was immaterial. Harrison's deed passed the fee.
The plaintiff gave in evidence a patent from the government to Harrison, and showed title to the lots described in the declaration; also a recorded plat of the town, dated in 1828, made by Harrison, which showed that, opposite to said lots, Water street extended from the lots to the river; and proved that in 1851 the defendants excavated the earth, erected foundation walls, and built a warehouse on said ground. This was all his proof.
The defendant then offered to prove that the erection of the warehouse was a benefit to the plaintiff's property, and had increased its value from 1,000 to 1,500 dollars; which testimony was, on the plaintiff's objection, excluded by the Court, and the defendant excepted. The appellee having offered to remit all but nominal damages in this Court, it will be unnecessary to consider whether the evidence was proper to reduce the damages. If the action is well conceived, it was clearly no bar. The erection of buildings, however valuable, after an unlawful entry, upon the lands of another, would be no answer to an action of trespass for breaking the close.
The defendants then proved that the warehouse was erected at a distance of sixty feet from the plaintiff's lots. They gave in evidence a quitclaim deed for the ground on which it is built, from Harrison to one of the defendants, dated May 11, 1850; and an act of the legislature, as follows:
"An act to vacate part of Water street in Williamsport, in the county or Warren, approved January 25, 1851.
&c., "that so much of Water street as lies between lots numbered one, two, three and four, and the Wabash river, in the town of Williamsport, in the county of Warren, and state of Indiana, be and the same is hereby vacated, except fifty feet on the western side of said street, and adjoining the said lots.
This was all the defendants' evidence.
Upon these facts, the Court instructed the jury, that the plaintiff and defendants both claimed under Harrison, and that when Harrison laid out part of the land he bought of the United States, into the town of Williamsport, and had his plat recorded in pursuance of law, it operated as a warranty deed to the public of all streets and alleys in said town of Williamsport, for the purposes designated, one street of which was Water street, which extended from lots two, three and four, in Williamsport, to the Wabash river; and that no act or law of the legislature, vacating said Water street, or any part thereof, without the consent of the plaintiff, could authorize Harrison, or his grantees, who are the defendants to resume the actual possession thereof and convert it to their private use; and that the said Water street, and every part thereof, should remain...
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