"On
the 15th day of February, 1881, the appellant filed his
complaint in the Porter Circuit Court to enjoin the appellees
from entering upon his land, tearing down his fences, and
opening and laying out a highway thereon, which was claimed
to have been established by an order of the board of
commissioners of Porter county. The complaint avers, in
substance, that the plaintiff was a resident tax-payer and
citizen of the township in which the highway was proposed to
be located and opened, and that he was the owner in fee and
in the occupancy of the following described real estate in
said county, to wit: The east half of the northeast quarter
of the northwest quarter of section twenty-four (24)
township thirty-four (34) north, range five (5) west; that
the defendant Marine was the trustee of the township, and the
defendants Ablet and Lennox were the supervisors of the road
districts in which such highway was pretended to have been
located; that at the December term, 1879, of the board of
commissioners of said county, William E. Pinney, and others
filed their pretended petition, asking for the location of a
public highway in said county, on the following route, to
wit: Commencing at the southwest corner of section fifteen
(15), and the northwest corner of section twenty-two (22), in
township thirty-four (34) north, range five (5) west, and
running thence east
on the line between said sections fifteen (15) and twenty-two
(22), and on the line between sections fourteen (14) and
twenty-three (23), and on the line between the southwest
quarter of section thirteen (13), and the northwest quarter
of section twenty-four (24), to the quarter post, where the
same will intersect a highway running north and south, the
proposed highway to be forty (40) feet wide, and which would
extend over and across plaintiff's land, taking and
occupying a strip twenty (20) feet wide therefrom; that at
the March term, 1880, of the board of commissioners, viewers
were appointed to view, mark out and locate said proposed
highway, if they should consider the same to be of public
utility. At the regular June term, 1880, of said board, the
viewers reported said proposed highway to be of public
utility, and that they had marked out and located the same on
the route designated in the petition; that divers freeholders
along said proposed highway remonstrated against the location
of the same, and claimed damages resulting to their
respective premises on account thereof, whereupon reviewers
were appointed to assess such damages; that at the September
term, 1880, such proceedings were had in reference to said
proposed highway that the board of commissioners made an
order pretending to finally locate and establish the same on
the route designated in the petition, to be of the width of
forty (40) feet, and ordered the same to be opened and kept
in repair, which order was transmitted to the defendants.
"That
at the time of the filing of the petition plaintiff's
said land was enclosed and under cultivation as a farm, and
has so continued and remained and still is, but at that time
the legal title thereto was in one Henry Wallace, but that
plaintiff was in the occupancy of the same, and has ever
since continued and remained and still is in such occupancy.
That on the 6th day of December, 1879, only three days after
the filing of the petition, and before any action had been
taken thereon, plaintiff purchased said premises at
sheriff's sale, in due form of law, on an execution in
the hands of the sheriff
of said county, issued by the clerk of the Porter Circuit
Court, on a valid judgment against said Henry Wallace, and no
person having redeemed the said premises, on the 13th day of
December, 1880, plaintiff obtained a sheriff's deed
therefor, and is now the owner in fee and in possession under
such deed. It is further averred that the petition for the
proposed highway did not set out the name of the owner,
occupant or agent of plaintiff's said land; that neither
the notices of the filing of the petition, the report of the
viewers thereon, nor the order of the board, pretending to
locate and establish said highway, set out the name of the
owner, occupant or agent of said premises; that neither the
report of the viewers, nor the order of the board of
commissioners, pretending to locate and establish said
highway, designated that the same should be equi-located on
the land of adjoining proprietors along the line thereof;
that neither the plaintiff nor said Henry Wallace, nor any
occupant or agent for either of them, was a party to or named
in any of the papers or proceedings to locate and establish
said highway; that neither of them had any notice whatever of
said proceedings until after the final order of the board of
commissioners had been made, locating and establishing said
highway; that the board of commissioners had no jurisdiction
to establish said highway, and the report of the viewers
thereon and the order of the board pretending to locate and
establish the same were wholly illegal and void.
"That
if said highway be opened and laid out on the route
designated, plaintiff would be required to build forty (40)
rods of additional fence; it would occupy about one-half acre
of valuable land, and would subject him to many
inconveniences, to his damage of at least $ 100, without
resulting in any benefit whatever to him or his said land.
That the defendant Ablet has given plaintiff notice in
writing to remove the fence from his said land, where the
same abuts against said highway, and set it back twenty feet
and in case he fails so to do said Ablet will enter on his
premises, under
claim and color of right, by virtue of the order of the board
of commissioners pretending to locate such highway, and
remove the fence therefrom and open said highway across the
same; that said defendant intends and threatens so to do and
will unless enjoined therefrom by an order from court; that
if said highway be opened over and across plaintiff's
said premises, he would be greatly damaged without any
adequate means of redress; that his enclosure would be
exposed and subjected to numerous trespasses by the public,
and he would be required to institute a multiplicity of suits
to restrain the same; that his crops, which were then growing
and which were annually raised on...
