Mcroberts v. Vogel

• Decision Date: 23 April 1935
• Docket Number: 14,870
• Citation: 195 N.E. 417,100 Ind.App. 303
• Parties: MCROBERTS v. VOGEL
• Court: Indiana Appellate Court

195 N.E. 417

100 Ind.App. 303

MCROBERTS v. VOGEL

No. 14,870

Court of Appeals of Indiana

April 23, 1935

From Boone Circuit Court; Edgar A. Rice, Special Judge.

Action by Martha McRoberts against William D. Vogel, a road contractor, to enjoin defendant from moving plaintiff's fences along a public highway. From a judgment for defendant plaintiff appealed.

Affirmed.

Ernest R. Stewart and Johnson & Zechiel, for appellant.

Philip Lutz, Jr., Attorney-General, and Caleb J. Lindsey, Assistant Attorney-General, for appellee.

OPINION

KIME, J.

This was an action brought by the appellant, who claimed to be the owner of the east half of the southwest quarter of section thirty-two (32), township twenty (20) north, range two (2) east, and alleged that said real estate was located in Boone county, Indiana, and that it lay on either side of the public highway known as the Michigan Road. The action was brought against the appellee, a road building contractor, who had contracted with the state highway commission to grade and pave a portion of said highway. The complaint was in one paragraph and sought to enjoin said appellee from removing fences and otherwise trespassing on that portion of land fenced by appellant and her grantors, being all that portion except twenty feet on each side of the center line of said Michigan Road. A plea in abatement was filed, to which a demurrer was addressed and sustained. A demurrer was then filed to the complaint which was overruled, following which a general denial closed the issues.

Trial was had resulting in a finding and judgment for the appellee. Following a motion for a new trial, which was overruled, this appeal was perfected, assigning the overruling of such motion as error. The grounds set out in the motion were that the decision was not sustained by sufficient evidence and that it was contrary to law.

The parties here are in accord as to the question involved and that the facts are undisputed. They say together,

"The question of law involved in this proceeding is whether under the undisputed facts the State of Indiana was estopped from claiming the full original 100-foot width of the Michigan Road, now known as State Road No. 29.

"(a) The undisputed facts, as shown by the evidence and recited by the court in its opinion denying to the appellant the relief prayer for in the complaint, are:

"First: That the highway in question is the Michigan Road.

"Second: That by the terms of a treaty between the United States and the Pottawatomie Indians, said Indian tribe ceded to the United States a strip of land extending from Lake Michigan by way of Indianapolis through to Madison, Indiana, 100 feet wide, upon which a road was to be constructed.

"Third: That by certain enactments of the Indiana State Legislature in the late 1820's said road was ordered laid out, marked and established to the width of 100 feet, that proper commissioners were appointed to do the work, and that said road was actually laid out, marked and established.

"Fourth: That the plaintiff, through her grantors immediate and remote, obtained title to the land described in the complaint, which land lays adjacent to and along said road, the fee in said land being in said plaintiffs extending to the center of said road.

"Fifth: That said road was maintained to the width of forty feet, i. e., 20 feet on either side of the center line of said road, for a period of 40 to 50 years, down to some 5 or 6 years ago.

"Sixth: That some 5 or 6 years ago, by order of the State Highway Commission of Indiana, the fences along said road were moved out some 10 feet on either side, making the width of the road between the fences some 60 feet in width.

"Seventh: That some two or three years ago the State Highway Commission ordered the fences moved out to a point 50 feet on either side of the center line of said road, making said road of the width of 100 feet.

"Eighth: That some time prior to 25 years ago and extending as far back as 50 years, the owners of lands adjacent to and along said road in the vicinity of the land in question, erected fences and constructed houses and business blocks along said road, some of which extended into and upon the 100-foot right-of-way of said road.

"Ninth: That the opening of said road to the width of 100 feet would materially damage the property of the owners who have built such improvements out upon said 100-foot strip."

The appellant contends that estoppel should be invoked because the sovereign had for a period of from forty to fifty years acquiesced in the use, by appellant and her grantors, of such portion of the highway as had been fenced.

It is the general rule, recognized by all of the authorities (and conceded by the appellant) that occupancy of a road established by legal proceedings will not invest an occupant with title nor divest the public of its rights. It is further generally recognized that under certain facts the public may be estopped from asserting its rights.

Where valuable improvements have been made in ignorance of the rights of the public and continued for such a long period of years or to such a pronounced degree along a highway which has not been actually located by monuments, the destruction of which would work irreparable injury, estoppel may be invoked.

The appellant contends that the facts here should estop the public and cites the following cases to sustain such contention: Hamilton v. State (1885), 106 Ind. 361, 7 N.E. 9; Collett v. Board (1889), 119 Ind. 27, 21 N.E. 329; Louisville, New Albany & Chicago Railroad Co. v. Shanklin (1884), 98 Ind. 573; Cheek v. City of Aurora (1883), 92 Ind. 107; Anderson v. City of Huntington (1907), 40 Ind.App. 130, 81 N.E. 223; Town of Newcastle v. Hunt (1911), 47 Ind.App. 249, 93 N.E. 173; Brooks v. Riding (1874), 46 Ind. 15; Dillon, Municipal Corporations, 5th ed., sec. 1187, et seq.

We do not believe it can be said that the fencing of this land was done in ignorance of the rights of the public when it must be presumed that appellant and her grantors are presumed to know that the law decreed this Michigan Road to be one hundred (100) feet wide and that such law had not been repealed. Thus the effect of Collett v. Board and Louisville v. Shanklin, supra, are destroyed if the latter ever applied. Nor is it shown that this was irreparable injury as the law announced in the Collett case deman...