Moore v. Auge

• Decision Date: 31 October 1890
• Docket Number: 14,528
• Citation: 25 N.E. 816,125 Ind. 562
• Parties: Moore et al. v. Auge et al
• Court: Indiana Supreme Court

25 N.E. 816

125 Ind. 562

Moore et al. v. Auge et al

No. 14,528

Supreme Court of Indiana

October 31, 1890

From the Pulaski Circuit Court.

Judgment affirmed, with costs.

W Spangler, H. A. Steis, G. W. Beeman, C. E. Barrett, S. J Peelle and W. L. Taylor for appellants.

A. I Gould, G. A. Murphy, J. C. Nye and R. A. Nye, for appellees.

OPINION

Olds, J.

This is a proceeding to establish a public highway in Starke county, Indiana, which was commenced by the filing of a petition with the board of commissioners of Starke county. Appellants filed a remonstrance, and the road was established by said board, and an appeal was taken to the Starke Circuit Court. The venue was then changed to the Lake Circuit Court, and from there to the Pulaski Circuit Court, where a trial was had resulting in a verdict for the petitioners, that the highway petitioned for would be of public utility, and assessing damages in favor of each of the appellants in the sum of $ 12.50, and a judgment was rendered in accordance with the verdict establishing the highway.

Appellants each filed a motion for a new trial, which was overruled and they reserved exceptions. The appellants each assign as error the overruling of their separate motions for a new trial; also, that the facts stated in the petition are not sufficient to entitle the petitioners to the relief asked for, and that it does not state facts sufficient to constitute a cause of action, or to give the court jurisdiction of the subject-matter. No question is made as to the form of the assignment of error.

The questions principally discussed relate to the weight of the evidence. It is contended that the road is not of public utility, and that the damages assessed are too small. These are questions for the jury to pass upon, and there is evidence to support the verdict, and this court will not weigh the evidence.

In the case of Kyle v. Miller, 108 Ind. 90, 8 N.E 721, it is held that the question as to the public utility of a proposed highway is a question of fact for the jury, and where the evidence is conflicting the verdict of the jury will not be disturbed on appeal, and this principle must rule in this case. The proposed highway commences at the south branch of the Kankakee river and runs about forty rods intersecting with a public highway, and it is contended that it constitutes a mere cul de sac. Even if this be true, it is, in effect, held in the case of Adams v. Harrington, 114 Ind. 66, 14 N.E. 603, that a highway open only at one end may be laid out and established. In that case it is said by the court: "There is nothing shown authorizing the inference that the road in question will form a mere cul de sac, that is, a way open only at one end. But, as to that, it may be noted that the weight of modern authority is to the effect that a cul de sac may, in certain cases, be laid out and established as a highway. Sheaff v. People, 87 Ill. 189 (29 Am. R. 49); People v. Kingman, 24 N.Y. 559." See ...