Lowe v. Ryan

• Decision Date: 16 April 1884
• Docket Number: 11,243
• Parties: Lowe v. Ryan et al
• Court: Indiana Supreme Court

94 Ind. 450

Lowe v. Ryan et al

No. 11,243

Supreme Court of Indiana

April 16, 1884

From the Jasper Circuit Court.

The judgment is affirmed with costs.

S. P Thompson and J. H. Wallace, for appellant.

A. W Reynolds and E. B. Sellers, for appellees.

Zollars J. Hammond, J., did not participate in the decision of this cause.

OPINION

Zollars J.

Appellees petitioned the board of commissioners for the location and opening of a public highway. Viewers were appointed, with directions to report at the ensuing June session of the board. At that session, the viewers made their report that they had located the highway, and that it would be of public utility. Both sides objecting to the report, on account of defects in the notice issued to the viewers by the auditor, the report was not accepted by the board. An order was then made by the board that "the proper precept be issued to, and served upon, said viewers," and that they make a view as required by law, and make report at the next regular session of the board.

At the September session of the board, the viewers reported that the proposed highway would be of public utility, and that they had marked and laid out the highway forty feet wide, twenty feet on each side of the line given in the petition, which was also given in the report. After the report was filed appellant moved to set it aside. In this motion no defects are pointed out, nor reasons assigned. After the motion was overruled, appellant and others filed a remonstrance, on the ground that the proposed highway would not be of public utility.

A second set of viewers were appointed to make a view and report upon the question of the public utility of the proposed road. These viewers reported at the ensuing December session of the board, that the road, as located, would be of public utility. Upon the reception of this report appellant filed a remonstrance, claiming damages. Reviewers were appointed, and, at the ensuing March session, reported that appellant was not entitled to any damages. A final order was then made establishing the highway as located by the viewers. From this order appellant appealed to the circuit court. After this appeal the venue was changed from the White to the Jasper Circuit Court, from which court this appeal is prosecuted.

In that court, appellant moved to set aside the report of the viewers who located the highway and reported upon the question of public utility. That motion was based upon reasons therein stated. In this, it differed from the motion made in the commissioners' court. In that motion, as we have seen, no defects in the report were pointed out, nor were any reasons assigned why the motion should be sustained, and the report rejected. The motion was so general and indefinite as to present no question to the board. The motion in the circuit court was therefore new, and presented to that court what had not been presented, nor urged, before the board of commissioners. Whatever may be, or should be, the proper practice in the circuit court, when the board of commissioners may have improperly overruled objections to reports of viewers, it is manifest that a proper practice requires that all objections to such reports should be first presented in the commissioners' court. On such a presentation, the board might sustain the motion, and thus save further errors and costs. This comports with the well settled doctrine of this court, that, in such cases, all objections not made before the board of commissioners are regarded as waived. Green v. Elliott, 86 Ind. 53; Breitweiser v. Fuhrman, 88 Ind. 28; Rominger v. Simmons, 88 Ind. 453; Peed v. Brenneman, 89 Ind. 252.

The motion in the circuit court included, also, the report of the viewers appointed upon the remonstrance that the proposed road would not be of public utility. As no objections were made to this report in the commissioners' court, this motion came too late. It may be observed, too, that the motion, as to both reports, was based in part upon matters not apparent upon the face of the record of the proceedings.

For the reasons stated, we think that the court did not err in overruling the motion to set aside the reports.

In the circuit court, appellant asked leave to file what he calls a plea in abatement. This was refused, and we think properly so.

In that so-called plea, appellant...