Matlock v. Hawkins

• Decision Date: 12 December 1883
• Docket Number: 10,234
• Citation: Matlock v. Hawkins, 92 Ind. 225 (Ind. 1883)
• Parties: Matlock v. Hawkins et al
• Court: Indiana Supreme Court

92 Ind. 225

Matlock v. Hawkins et al

No. 10,234

Supreme Court of Indiana

December 12, 1883

From the Wayne Circuit Court.

The judgment is affirmed, with costs.

I. B Morris, for appellant.

T. J Study, for appellees.

OPINION

Howk C. J.

In this action the appellant sued to recover damages for the alleged obstruction by the appellees of a certain public highway in Wayne county, described in the complaint.Answers and replies were filed, and the cause being at issue was tried by the court, and a finding was made for the appelleesthe defendants below.Appellant's motion for a new trial having been overruled, the court adjudged that he take nothing by his suit, and that appellees recover of him their costs in this action expended.

In this courtappellant has assigned as errors the following decisions of the court below:

1.In overruling his demurrer to the third paragraph of appellees' answer; and,

2.In overruling his motion for a new trial.

In the third paragraph of their answer, which was addressed "to that portion of the alleged public highway which the plaintiff claims to exist and run over, along and upon the section line, dividing the land of the defendantThomas Lockley from the lands of the other defendants to this action,"the appellees averred that such portion of the alleged public highway was vacated by the order and judgment of the board of commissioners of Wayne county, at its September term, 1866, on a proper petition presented to and filed before such county board.Wherefore, etc.

This suit was commenced by the appellant on the 14th day of December, 1881.He did not allege in his complaint that the public highway therein described was located and established in accordance with the statute providing for the opening of public highways.But the appellant averred that "prior to the year 1866, there was a public highway, thirty feet wide, running south * * * * on the section line dividing sections 26and27, * * * * and on the line dividing the land of Thomas Lockley from the lands belonging to the other defendants."It will be seen that, in the third paragraph of their answer, the appellees do not deny, but impliedly admit that "prior to the year 1866 there was a public highway," as alleged by the appellant; and they avoid the effect of this implied admission by the averment that the portion of the public highway which ran along and on the section line, dividing the land of the defendantThomas Lockley from the lands of the other defendants, was vacated by the order and judgment of the board of commissioners of Wayne county, at its September term, 1866.Appellant's counsel claims that the third paragraph of answer was bad, on the demurrer thereto, because, he says, it is fifteen years since the alleged vacation, during which time the public, by user and work, might have acquired a public highway over the vacated portion of the old highway.It is a sufficient answer to this argument to say that the third paragraph was addressed to a single averment of the complaint, and that it is a good defence to that portion of the complaint.The court did not err, therefore, in overruling the demurrer to the third paragraph of answer.

The first cause for a new trial assigned by the appellant, in his motion therefor, was error of the court in excluding the record of the trustees of Wayne township, in Wayne county when offered by him as evidence for the purpose of showing that, by the order of such township trustees, the road described in his complaint was entered and recorded as a public highway, on the 3d day of August, 1857.In the highway act of June 17th, 1852, sections 27 to 38 inclusive were devoted exclusively to the opening, vacation and change of highways, affecting but one township, and jurisdiction of such highways was thereby conferred upon the trustees of the township.1 R. S. 1852, pp. 313, 314.Section 27 required the petition of twelve freeholders of the township, before the trustees of the township would be authorized to act in the premises.It...