Morrow v. Sweeney

• Court: Indiana Appellate Court
• Writing for the Court: ROSS
• Citation: Morrow v. Sweeney, 10 Ind.App. 626, 38 N.E. 187 (Ind. App. 1894)
• Decision Date: 19 September 1894
• Parties: MORROW v. SWEENEY.

10 Ind.App. 626

38 N.E. 187

MORROW

v.SWEENEY.

Appellate Court of Indiana.

Sept. 19, 1894.

Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Action by Edward Sweeney against Jackson Morrow for damages. There was judgment for plaintiff, from which defendant appeals. Affirmed.

Elliott & Overton, for appellant. Blacklidge, Shirley & Moon, for appellee.

ROSS, J.

The appellee filed his complaint against the appellant to recover damages for an injury to a horse by coming in contact with a barbed-wire fence placed by appellant around a lot owned by him in the city of Kokomo. Upon issue joined, there was a trial, verdict, and judgment for appellee in the sum of $45. The complaint, omitting the caption, is as follows: “The plaintiff, Edward Sweeney, complains of the defendant, Jackson Morrow, and says: That on or about the 25th day of November, 1892, the defendant, Jackson Morrow, was, and for two or three years prior to said date had been, the owner of lot No. 36 in Mansfield's addition to the city of Kokomo, Howard county, Indiana. That the said lot, in size, is fifty feet north and south, and two hundred eight feet east and west, and is situated upon the west side of what is known as ‘Washington Street,’ in said city of Kokomo. The east end thereof, abutting upon said Washington street, extends north and south through the said city. That in said Mansfield addition there are platted 107 lots near the size of said lot 36. Immediately west of a portion of said addition, and extending north and south through a portion of said city of Kokomo, is a street known as ‘Armstrong Avenue.’ That after said Mansfield addition was platted, which was 4 to 5 years prior to said 25th day of November, 1892, the same said addition was allowed to remain an open common, the streets and alleys thereof being unimproved; there being no lines or monuments by which the location of said streets or alleys could be discovered or ascertained. That in the additions to said city, west of said Mansfield addition, and adjoining the same, were a large number of lots which were unfenced, and were allowed to remain an open common, also, the streets and alleys thereof being unmarked by any well-defined lines. That immediately south of said Mansfield addition, and forming a portion of the southern boundary thereof, is a street in said city known as ‘Markland Avenue,’ which at the date aforesaid was much traveled; the lines and routes thereof being well marked, and plain to view. That before the platting of said additions, and until the date aforesaid, and before the improvement of said Washington street, or before there were any lines, marks, or monuments in any way to indicate the boundaries of the same, there was a well-defined wagon road, which was almost continuously traveled by the public, extending from the said Markland avenue, in a northwesterlyand westerly direction, across the line of said Washington street, and also across said Armstrong avenue, and across said lot 36 aforesaid, so owned by the said Jackson Morrow. That said traveled track crossed said lot diagonally, passing over the same, and entering it at a point about midway between the southwest and southeast corners thereof, and leaving the same near midway between the southwest and the northwest corners thereof. That said traveled way was used almost continuously before and after the platting of said addition by all those who desired to pass from said Markland avenue in a northwesterly direction across said addition or across said common; also, by those who desired to travel in a southeasterly direction over and across said addition, for the purpose of reaching said Markland avenue. That at no time after said traveled roadway became well defined, and in constant use by the public in passing over the same with horses and vehicles, was there at any time placed therein an obstruction or barrier to indicate to the public that it was the desire of the various of owners of the lots in said addition to prohibit the use of said roadway. Immediately south of the said lot 36, between it and the lot immediately south thereof, when said addition was laid off, there was indicated in said plat an alley about 10 or 12 feet in width; said roadway entering said alley at the east end thereof, where it intersected or entered said Washington street, and leaving said alley and crossing said lot at the points as hereinbefore set forth and indicated. That the travel upon said roadway across said commons and said lot was, as aforesaid, continuous and uninterrupted, by persons traversing the same in attending to their business, as well as by those who desired to use the same for pleasure riding. That at no time prior to said date, to wit, the 25th day of November, 1892, was there any fence, barrier, line, or monument, or obstruction of any kind, upon the line or around said lot 36, to indicate or give warning to those traveling upon said lot that the owner of said lot intended to or desired to prevent the public from traveling across the same. That some time during the month of November, or during the fall of 1892, the said Jackson Morrow commenced a dwelling house upon the east end of said lot, and had the same nearly completed at the date aforesaid. But, while the work upon said house was being prosecuted at the date aforesaid, no fence or obstruction of any kind was placed upon or around said lot to indicate to the public that the owner thereof, Jackson Morrow, intended to prevent or prohibit travel across the same. That by the building of said house the said roadway was in no wise obstructed, or the travel across said lot in any way interfered with. That on or about the 25th day of November, 1892, the said Jackson Morrow placed small posts at the southwest corner and at the northeast corner of said lot, also at the northwest corner thereof, securely fastening the same (said posts) in the ground, and stretched and tightened a barbed wire from the post at the southwest corner thereof, and from said southwest corner to the post at the northwest corner, securely fastening the said wire to said posts, and so placing the same around said lot as to cause it to be about 2 1/2 to 4 feet from the ground; said wire being so constructed as to be hurtful and dangerous to animals and individuals coming in contact therewith, there being interwoven in said wire, as a part thereof, rough barbs, causing the same to be jagged, and of such a character as to saw, lacerate, and cut the flesh of animals or persons that might come in contact therewith. That the said Jackson Morrow, after placing said barbed wire, as...