Huffman v. State

• Decision Date: 25 January 1899
• Citation: 21 Ind.App. 449,52 N.E. 713
• Parties: HUFFMAN v. STATE.
• Court: Indiana Appellate Court

21 Ind.App. 449

52 N.E. 713

HUFFMAN

v.STATE.

Appellate Court of Indiana.

Jan. 25, 1899.

Appeal from circuit court, Blackford county; E. C. Vaughn, Judge.

G. Max Huffman was convicted of trespass, and he appeals. Affirmed.Cantwell, Cantwell & Simmons, for appellant. W. L. Taylor, A. G. Merrill Moores, J. W. Fesler, and E. E. Stevenson, for the State.

WILEY, J.

Appellant was prosecuted for trespass under the following provision of the statute: “Whoever, * * * being unlawfully upon the inclosed or uninclosed lands of another, shall be notified to depart therefrom by the occupant or his agent or servant, * * * [and] neglect or refuse to depart therefrom, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five or more than fifty dollars.” Horner's Rev. St. 1897, § 1941. While, in the court below, a motion to quash the affidavit (the prosecution having originated before a justice of the peace) was made and overruled, and such ruling is challenged by an assignment of error, there is no necessity of referring to the affidavit further, for the reason that the question of its sufficiency is waived by a failure to discuss it. On a plea of not guilty, the cause was tried by a jury, resulting in a verdict of guilty and a judgment of conviction. Appellant's motion for a new trial was based upon three reasons: (1) The verdict was contrary to law; (2) the verdict was contrary to the evidence; (3) the verdict was not sustained by the evidence. This motion the court overruled, and such ruling is assigned as error, and presents the only question for decision.

Under the statute defining the causes for which a new trial may be granted in criminal cases, the third reason assigned in the motion in this case does not come within the statute, and hence does not present any question for review. The first and second reasons, however, present the question discussed by counsel, and under them the court can decide the question of contention.

The lands described in the affidavit upon which the trespass is charged to have been made were owned by one Samuel Sipe, and occupied by one Andrew Sipe, who was the tenant and in possession. A public highway bounds one side of the lands, and it was in and upon this highway that the trespass, if any, was committed. It is shown by the evidence without contradiction that, some three or four years prior to the date fixed in the affidavit, the Salemonie Mining & Gas Company constructed a two-inch pipe line on the highway in front of the land of said Samuel Sipe; that the Ft. Wayne Gas Company, by purchase, succeeded to the rights of the original company, and owned said line at the date of the commencement of this prosecution; that, at the time said two-inch pipe line was put in, Andrew Sipe owned the land in question, and lived upon it; that said line was put in on the side of the highway next to the Sipe land, and near the fence inclosing said land; that the said Ft. Wayne Gas Company was putting in a larger pipe line on the opposite side of the road, had the trench dug, and the pipe placed and strung along, ready to put in; that, at the date fixed in the indictment, appellant was in the employment of the Ft. Wayne Gas Company, in charge of a force of men who were engaged in taking up the two-inch pipe, and refilling the ditch from which it was removed; that the said Andrew Sipe went to appellant, who was in the highway, but on the side thereof next to the Sipe land, and ordered him off the premises, and told him that he did not want him to trespass upon said lands; that appellant refused to depart therefrom; that said Andrew Sipe also ordered the men engaged in taking up said line to depart; that some of them left the ditch, and appellant ordered them back to work; that, at the time appellant was ordered to depart from said lands, he was in the public highway, and remained therein all the time during the conversation between the said Andrew Sipe and himslf, and did not at any time go upon the lands described in the affidavit except to remain in the highway and on the side thereof next to said lands. As to whether the said Andrew Sipe knew at the time that the pipe line was being constructed along and upon said highway in front of said lands, and as to whether he consented thereto, there is a sharp contradiction. On the one hand, he testified that he did not know it was being constructed until after the company had passed beyond said premises, and that he did not consent thereto, nor give his permission to so construct the same; while, on the other hand, other witnesses did testify that he both knew and gave his consent to such construction. It further appears that, after the line was constructed, he knew of it, and knew that it was being used, and made no objection thereto. Hence if it was a material fact that he had or had not knowledge of the construction of the line at the time it was constructed, or that he did or did not give his consent thereto, we must presume that the jury resolved such facts in favor of the state; and, under the rule that this court will not weigh the evidence where there is a conflict, the question is put at rest by the finding of the jury. It is upon these facts that we are to determine whether or not the verdict is contrary to law, or contrary to the evidence.

The controlling question is simply this: Has the owner of lands abutting upon a public highway such a proprietary right in the highway, to the center thereof, as to notify and direct one who is unlawfully upon such part of the highway to depart, and will the refusal and failure of such person to depart, upon such notice, render him liable to prosecution for trespass under the statute? It is the firmly established rule in this state that the owner of lands abutting upon a public highway owns the fee to the center thereof, subject only to the easement which the public has for highway purposes. Cooley, Torts, 318; People v. Foss, 80 Mich. 564, 45 N. W. 480.Trust Co. v. Huntsinger, 14 Ind. App. 156, 42 N. E. 640. The right of the owner yields only to the greater rights of the public. As we have said, the only right the public has is simply an easement affording a passage over and along the highway. Trust Co. v. Huntsinger, 14 Ind. App. 156, 42 N. E. 640;Haslett v. Railroad Co., 7 Ind. App. 603, 34 N. E. 845, and cases there cited. It is likewise settled that such abutting owner has a special proprietary right in the highway, separate and distinct from that of the general public, and that this right cannot be taken or impaired without compensation. Haslett v. Railroad Co., supra. It has been held by this court that the easement for road purposes, which grants to the general public the right to pass and repass over a man's land, does not carry with it a right to use it for other purposes not legitimately connected with the use of highways. Trust Co. v. Huntsinger, supra. It cannot be said that the construction of a pipe line for conveying natural gas comes within the uses for which public highways were intended. It has been held that a right may be granted by the board of commissioners to construct a pipe line along a public highway; but it is also the law that constructing such pipe lines is an imposition of an additional burden upon the fee from that embraced in the easement for highway purposes, and that compensation must be made to the owner of the fee. Kincaid v. Gas Co., 124 Ind. 577, 24 N. E. 1066.

It seems to us that when the Salemonie Gas Company entered upon the lands in question, without the consent of the owner of the fee, and without permission of the board of county commissioners, it became a trespasser, and was upon such lands unlawfully. If it was unlawful in the first place to go upon the lands to construct the pipe line, without the consent of the owner, it was likewise unlawful to go upon them to remove the same; and hence when appellant was upon the lands of the prosecuting witness, in charge of a force of men engaged in removing such pipe line, he was unlawfully there. While appellant was not himself engaged in the manual...