McDonald v. Payne

• Decision Date: 17 April 1888
• Docket Number: 13,145
• Citation: 16 N.E. 795,114 Ind. 359
• Parties: McDonald v. Payne et al
• Court: Indiana Supreme Court

16 N.E. 795

114 Ind. 359

McDonald v. Payne et al

No. 13,145

Supreme Court of Indiana

April 17, 1888

From the Porter Circuit Court.

The judgment is affirmed, with costs.

H. A Gillett, for appellant.

W Johnston, for appellees.

OPINION

Mitchell, C. J.

McDonald instituted proceedings against Payne and Greene, highway supervisor and township trustee, respectively, to restrain them from opening an alleged public highway through his land. The petition for the highway, and all the proceedings and orders in that connection, are set out with the complaint, to which the court below sustained a demurrer for want of sufficient facts. The only question presented by this appeal is, whether, upon the facts stated in the complaint, the opening of the highway should have been enjoined by the court.

The position of the appellant is, that the proceedings under which the highway was located are void from beginning to end for want of a sufficient description of the highway proposed in the petition, and other proceedings. This being a collateral attack, it must necessarily fail unless the petition and proceedings assailed are wholly void.

The accepted rule of decision of this court is, that an injunction in a case like the present will not lie unless the proceedings sought to be enjoined are so defective as to be a nullity. They must be totally void, or so defective as not to afford the means of information, to those interested, of the manner in which the opening of the highway on the route proposed would affect them. McIntyre v Marine, 93 Ind. 193; Erwin v Fulk, 94 Ind. 235; Adams v. Harrington, ante, p. 66, and cases cited.

As has been in effect said, the essential description of a public highway includes its beginning, course and termination, including its width. If in any of these particulars the description is so uncertain and ambiguous as that a practical surveyor could not locate the highway from the descriptions contained in the petition, report of viewers, and the final order of the board, then the entire proceeding is void, and it must necessarily fall to the ground. Smith v. Weldon, 73 Ind. 454; Ruston v. Grimwood, 30 Ind. 364.

Where, as in the present case, the attack is collateral, if the termini and intermediate course are designated and described, either by courses and distances or by reference to known monuments or permanent objects, so that, by taking the description as given in the proceedings all together, and giving all reasonable intendments in favor of the proceedings, the highway can be located from the description thus given, the order establishing it will be upheld. Suits v. Murdock, 63 Ind. 73.

We agree with the insistence of counsel that the appropriation of private property should not be accomplished by the use of uncertain or ambiguous language, and that the authority or act by which the lands of the citizen are appropriated to a public use should be clear and intelligible, and that the instrument or proceedings by which they are taken should contain such a description that the property to be taken may be ascertained from the record. Glover v. City of Boston, 14 Gray, 282.

This certainty, however, is of the same nature as that required in a conveyance of land, which is such that a surveyor could go on the land and mark out the tract conveyed from the description and references contained in the deed. Conaway v. Ascherman, 94 Ind. 187; Adams v. Harrington, supra; Mills Eminent Domain, section 115.

A deed will not be declared void for uncertainty as long as it is possible by any reasonable rules of construction to ascertain from the description found therein what property it was intended to convey. Wendell v. Jackson, 8 Wend. 183; Stone v. Stone, 116 Mass. 279.

It is not to be supposed that the petitioners for a highway must first have employed a surveyor, so that the proposed highway might be described in the petition with technical accuracy.

"The proceeding," says a standard author, "was intended to be practical, so that the common highways of the country might be established without the employment of a corps of scientific men for the purpose, but that the roads might be established by ordinary practical business men." Mills Eminent Domain, section 277. Henline v. People, 81 Ill. 269.

The petition in the present case, so far as it relates to the description, is as follows: "Commencing at the road crossing over the Michigan Central Railroad known as Bendig's Crossing, in section 20, township 37 north, range 5 east, thence easterly and along the north line of said Michigan Central Railroad to the intersection of a road running north and south, and along the east side of the residence of H. R. McDonald; * * said proposed highway to be forty feet wide, and running through lands owned by Charles Brenner," etc.

Assuming as in the absence of a contrary showing we may, that there is a highway running north and south and crossing the Michigan Central Railroad in the township above mentioned, and that this crossing is known as "Bendig's Crossing," and that there is another highway running north and south, crossing...