Houlton v. Carpenter

• Decision Date: 17 October 1902
• Citation: 29 Ind.App. 643,64 N.E. 939
• Parties: HOULTON v. CARPENTER.
• Court: Indiana Appellate Court

29 Ind.App. 643

64 N.E. 939

HOULTON

v.CARPENTER.

Appellate Court of Indiana, Division No. 1.

Oct. 17, 1902.

Appeal from circuit court, De Kalb county; E. D. Hartman, Judge.

Petition by Margaret E. Carpenter to change the location of a highway, to which Mary E. Houlton files a remonstrance. From a judgment allowing the proposed change, remonstrant appeals. Affirmed.

J. E. & J. H. Rose, for appellant. John W. Baxter, for appellee.

BLACK, J.

The appellee petitioned the board of commissioners of De Kalb county for permission to change the location on the appellee's own land of a portion of a certain highway, known as the “Fish Creek Road.” The appellant, owning land through which another portion of the road runs, filed before the board, and afterward on appeal in the court below, an answer denying the jurisdiction of the board over the subject-matter of the proceeding, and asking its abatement. A demurrer of the appellee to this answer was sustained. The appellant filed a remonstrance wherein, amongst other things, said Fish Creek road was referred to as having been used as a road, as then located, for more than 20 years last past, and as an old road traveled by teams, carriages, and people. Such proceedings were had that the appellee, by the judgment, was granted permission to make the proposed change of the highway.

The record presents the question whether or not the board of commissioners had jurisdiction of the subject-matter of the change, where, as alleged in the answer in abatement, the highway had never been petitioned for or laid out or located as a public highway by any judicial proceeding, and had never been ascertained, described, and entered of record as a highway. The contrary not being alleged, it is to be assumed that the road had been used as a public highway for 20 years or more. Our statute (section 6762, Burns' Rev. St. 1901) provides “that all public highways which have been or may hereafter be used as such for twenty years or more, shall be deemed public highways; and the board of county commissioners shall have power to cause such roads used as highways as shall have been laid out but not sufficiently described, and such as have been used for twenty years but not recorded, to be ascertained, described and entered of record, and such board shall declare and establish the width of any such highway, which width shall not be less than thirty feet, and where any such highway shall be located upon a line dividing the lands of different owners, one-half of such highway shall be taken from the land of each owner.” The statute under which the proceeding at bar was instituted provides (section 6774, Burns' Rev. St. 1901): “Any person or persons through whose land any state, county or township highway heretofore located and established, or hereafter to be located and established, may run, may petition the board of commissioners of the proper county for permission to change the location of such highway on his, her or their own land, or on the lands of any other person consenting thereto.” The appellant contends that the county board has no authority to proceed, under section 6774, supra, to change the location of a road on the petitioner's own land, when the road has been used as a public highway for 20 years or more, but has never been petitioned for, or laid out or located as a public highway by any judicial proceeding, and has never been ascertained, described, and entered of record as a highway, as provided for by section 6762, supra. It is claimed that such a road, used as a public highway for 20 years or more, which has never been petitioned for, or laid out or located as a public highway by any judicial proceeding, and has never been ascertained, described, and entered of record as a highway, is not a state, county, or township highway, within the meaning of these terms in section 6774, supra, and cannot be regarded as having been located and established as contemplated by that statute. It is remarked in section 10, Elliott, Roads & S., that it may be said that, where a road does not extend beyond the limits of one township, it is to be deemed a township road, and that when it extends beyond the limits of a township any considerable distance, it is a county road. In 15 Am. & Eng. Enc. Law, 352, it is said: “What is known in some sections as a ‘state road’ is a highway laid out by the direct authority of the state, generally between distant places and through different counties, to supply a want felt by a large district of country, which, because of a diversity of interests, the local authorities are not always willing to supply.” In the early statutes of our state many enactments may be found directly providing for the location of roads as state roads, sometimes wholly within a county, and sometimes extending into more than one county. Some of the statutes merely changed certain county roads to state roads. Contemporaneous with statutory provisions relating to the location and establishment of state roads by commissioners appointed by the legislature, there were provisions for the location and establishment of certain roads by county officials, and of other roads by township officials. In section 240, Burns' Rev. St. 1901, it is provided: “The word ‘highway’ shall include county bridges, state and county roads, unless otherwise expressly provided.” Patton v. Creswell, 120 Ind. 147, 21 N. E. 663, was a proceeding like the one now before us, under section 6774 et seq., Burns' Rev. St. 1901; and the county board was held to have authority therein to change an existing highway on the land of the petitioners so as to run upon the line of another highway upon their lands, and to widen the latter highway, which was one which had been established by continuous use, thereby vacating the first-mentioned highway. The court referred to section 6774, supra, as providing, in substance, that any person or persons through whose lands “any public highway” may run may petition the board of commissioners of the proper county to change the location of the highway on their own land, or on the lands of any other person consenting thereto. While the terms in question originally were used, for the most part, at least, with regard to the governmental authority or agency by which the roads were laid...