Hughes v. Beggs

• Decision Date: 08 May 1888
• Docket Number: 13,175
• Citation: 16 N.E. 817,114 Ind. 427
• Parties: Hughes et al. v. Beggs et al
• Court: Indiana Supreme Court

16 N.E. 817

114 Ind. 427

Hughes et al. v. Beggs et al

No. 13,175

Supreme Court of Indiana

May 8, 1888

From the Clark Circuit Court.

Judgment reversed.

J. H Stotsenburg, E. B. Stotsenburg and M. Clegg, for appellants.

J. K Marsh and W. H. Watson, for appellees.

OPINION

Elliott, J.

The appellees petitioned for the vacation of a highway, and the appellants remonstrated, but the circuit court decided in favor of the petitioners.

Counsel for the appellants insist that the statute does not provide for the vacation of part of a highway. In this they are in error. If part of a highway ceases to be of public utility it may be vacated. It is a question to be tried by the proper court whether the vacation of a part of a highway will benefit the public; and, while it is no doubt true that, as a general rule, it would be an injury to the public to vacate part of a highway, still the authority of the proper court to order it, where the law and the evidence require it, undoubtedly exists. The argument of counsel proves that it is an authority that should be carefully exercised, but it is far from proving that there is no such authority. The statute not only confers the authority in general terms to vacate highways, but expressly provides for the vacation of a highway, "or any part thereof," and specifies what shall be done in case part of a highway is vacated. R. S. 1881, sections 5015, 5017.

Some irregularities in the proceedings before the board of commissioners are pointed out, but these irregularities do not invalidate the proceedings, as the case is tried de novo in the circuit court. The latter court does not sit merely as a court for the correction of errors, but sits as a trial court, and determines the case upon its merits, in so far as the remonstrance presents proper questions for its decision. Reynolds v. Shults, 106 Ind. 291, 6 N.E. 619; Clift v. Brown, 95 Ind. 53; Turley v. Oldham, 68 Ind. 114.

The trial court erred in permitting witnesses to give their opinion as to the utility of vacating the highway. It is settled that witnesses can not give an opinion upon the exact point in issue; and it is also settled, that whether the opening or vacation of a highway will be of public utility is not a question upon which witnesses can express their opinions. Loshbaugh v. Birdsell, 90 Ind 466; Yost v. Conroy, 92 Ind. 464; Thompson v. Deprez, 96 Ind. 67; 1 Greenl. Ev., section 440; 2 Taylor Ev...