Martin v. Marks

• Decision Date: 09 May 1900
• Docket Number: 18,640
• Citation: 57 N.E. 249,154 Ind. 549
• Parties: Martin et al v. Marks et al
• Court: Indiana Supreme Court

57 N.E. 249

154 Ind. 549

Martin et al v. Marks et al

No. 18,640

Supreme Court of Indiana

May 9, 1900

From the Tippecanoe Superior Court.

Affirmed.

J. F Hanley, W. R. Wood and D. W. Simms, for appellants.

R. P Davidson and A. Boulds, for appellees.

OPINION

Monks, J.

This action was brought by appellees against appellants for a mandatory injunction to compel them to remove a fence constructed by appellant Martin in a public highway upon which appellees' farm abutted, and to prevent them from maintaining the same therein. The separate demurrer for want of facts of each appellant to the complaint was overruled; the cause was tried by the court, a special finding made, and conclusions of law stated thereon in favor of appellees, and, over a motion for a venire de novo, a motion for a new trial, and a motion in arrest, judgment was rendered in favor of appellees.

The errors assigned and not waived call in question the conclusions of law and the action of the court in overruling the demurrers to the complaint, motion for a venire de novo, motion for a new trial, motion in arrest, and motion to modify the judgment.

Appellants insist that the Superior Court of Tippecanoe county had no jurisdiction of the subject-matter of this action, for the reason that said court was created in 1875 (Acts 1875, p. 55), and the act providing that courts shall issue writs of mandate was enacted afterwards, in 1881 (Acts 1881, p. 379, § 1181 Burns 1894, § 1167 R. S. 1881 and Horner 1897), and gives jurisdiction thereof only to the circuit courts. It is true that said section of the act of 1881, being § 1181 (1167), supra, provides that: "Writs of mandate and prohibition may issue from the Supreme and circuit courts of this State," but, in addition to the jurisdiction given by other sections of said act of 1875 to said Superior Court, section fourteen thereof expressly gives said court and the judge thereof, in vacation, power "to grant restraining orders, injunctions and writs of ne exeat, to issue writs of habeas corpus, and of mandate, and prohibition, to appoint receivers, master commissioners, and commissioners to convey real property * * * as is now, or may hereafter be conferred on circuit courts, or the judges thereof." This section not only gives the same jurisdiction over the matters mentioned therein to said Superior Court and the judge thereof as was then vested in circuit courts, but also all jurisdiction over such matters as might thereafter be conferred on the circuit courts. Whatever jurisdiction of said matters, therefore, was conferred on circuit courts by the act of 1881 was by said act of 1875 given to said Superior Court. Hockemeyer v. Thompson, 150 Ind. 176, 48 N.E. 1029. It is clear that said court had jurisdiction over the subject-matter of this action, and did not err in overruling the motion in arrest of judgment, asserting want of jurisdiction as the cause therefor.

The reason assigned for a venire de novo was that the special finding of facts was not signed by the judge. If there is no signature of the trial judge to the finding of facts and the conclusions of law stated thereon, the same must be treated as a general finding. Smith v. State, ex rel., 140 Ind. 343, 349, 39 N.E. 1060, and cases cited. The failure of the judge to sign the same, therefore, furnishes no ground for a venire de novo. As shown by the record, however, the conclusions of law follow immediately after the special finding of facts, and the signature of the trial judge follows the conclusions of law. The special finding of facts and conclusions of law, as prepared in this case, therefore, constituted one written instrument, which was properly signed as such. O'Neal v. Hines, 145 Ind. 32, 37, 43 N.E. 946. The motion for a venire de novo was properly overruled.

As the questions presented by the demurrers to the complaint and the exceptions to the conclusions of law are the same, a determination of the latter necessarily determines the former.

It appears from the special finding that appellees are, and have been since 1893 or 1894, the owners of real estate abutting upon the east side of a highway in Tippecanoe county for a distance of about 130 rods, and that the only means of ingress to and egress from said real estate is by said highway; that appellant, Martin, is, and has been since 1894, the owner of real estate abutting upon the west side of said highway, adjacent to the real estate of appellees. Said highway was fenced on each side, and the distance between said fences varied, but at no place was the distance less than forty feet, nor more than forty-four feet; that said highway was worked and graded, and ditches were made on each side, and by reason of said side ditches, and the action of the water, and the wear of travel, there were left, twenty-five or thirty years ago, on each side of the traveled way, and outside of said side ditches, well defined banks, of greater or less height, in places as much as four feet, and usually abrupt and nearly perpendicular, on the top of which banks stood the fences bounding said highway. In 1896 appellant, Martin, was appointed supervisor of the road district in which said highway is located, and in May, 1896, and while supervisor of said road district he tore down the fences along the west side of said highway the entire distance his land abutted thereon, and unlawfully, and with force, erected a new and very strong and substantial fence within the limits of said highway for the same distance. This fence was made of strong posts deeply set in the ground, upon which was placed woven wire, and above said woven wire were two barbed wires; that by the erection of said fence said appellant, Martin, unlawfully took from the width of the highway on the west side thereof, and enclosed the same as a part of his farm, a strip of ground five feet wide at the south end of the new fence, about nineteen feet in width at appellees' barn-lot, sixteen feet in width opposite appellees' gate, and eleven feet at the north end of said new fence; that said new fence was built a part of the way near the middle of the graveled part of the road, and the distance between said new fence and the fence on the east side of the road at the narrowest part, was only twenty-one feet; that at the point opposite the gate leading into appellees' farm, and to their barn and dwelling thereon, the distance between the new fence and appellees' fence was twenty-four feet. After completing his fence appellant, Martin, resigned his office of supervisor of said road district and appellant, McCleve, was appointed his successor. Before the commencement of this suit appellees notified said McCleve, and requested him, as such supervisor, to remove said fence from said highway, which he refused to do; that appellees, by reason of said obstruction of said highway, have sustained and do now sustain, a special injury not common to the general public; that it has made ingress to and egress from their farm more inconvenient, difficult, and dangerous; that in going in and out of appellees' farm it requires more care and time, and is attended with more danger of breakage and loss on account of said obstruction than before its erection; that the continuance of said obstruction will diminish the rental value of appellees' farm $ 35 per annum, and will depreciate the market value of said farm to a marked extent; that appellees have sustained damages by reason of said obstruction, up to the time of the commencement of this action, in the sum of $ 25.

The conclusions of law stated were: (1) That the obstruction on said highway is a public nuisance, and should be abated by the order and decree of court; (2) that there should be a decree directing appellant, Martin, to abate and remove said nuisance, and enjoining him from renewing and continuing the same; (3) that appellees are entitled to an order and decree against appellant, McCleve, as supervisor, to remove said fence, and abate said nuisance; (4) that appellees are entitled to judgment against appellant, Martin, for $ 25 damages.

It is conceded by counsel for appellants that the erection of said fence in the public highway was a public nuisance, even though it did not operate as an obstruction to public travel. This is the settled law in this State. City of Valparaiso v. Bozarth, 153 Ind. 536, 55 N.E. 439, and cases cited. It is also true that a public nuisance cannot be enjoined at the suit of a private person. McCowan v. Whitesides, 31 Ind. 235; Fossion v. Landry, 123 Ind. 136, 24 N.E. 96. A private person can, however, maintain an action for the obstruction of a public highway, if he thereby sustains some particular or peculiar injury different in kind and not common to the general public. Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101, 104, 105, 47 N.E. 332, and cases cited; Matlock v. Hawkins, 92 Ind. 225, 228; Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123, and note pp. 132-135; McCowan v. Whitesides, supra; Pettis v. Johnson, 56 Ind. 139; Fossion v. Landry, supra.

It is also held in this State that a person owning real estate abutting on a highway may maintain an action for and enjoin the obstruction of said highway immediately in front of said real estate, even if the obstruction is not upon his real estate, if it materially impairs or interrupts his access thereto. Pittsburgh, etc., R. Co. v. Noftsger, supra, and cases cited; McCowan v. Whitesides, supra; Indiana, etc., R. Co. v. Eberle, 110 Ind. 542, 546, 11 N.E. 467; Pettis v. Johnson, supra; Egbert v. Lake Shore, etc., R. Co., 6 Ind.App. 350, 33 N.E. 659.

The owners of real estate abutting upon a highway have a peculiar and distinct interest in the highway in front of their real estate; this interest includes the right...