Reynolds v. Shults

• Decision Date: 22 April 1886
• Citation: 6 N.E. 619,106 Ind. 291
• Parties: Reynolds and others v. Shults and others.
• Court: Indiana Supreme Court

106 Ind. 291

6 N.E. 619

Reynolds and others

v.Shults and others.

Supreme Court of Indiana.

April 22, 1886.

Appeal from Porter circuit court.

Bartholomew & Crumpacker, for appellants.

Jones & Jones and Wm. Johnston, for appellees.

Howk, J.

This suit or proceeding was instituted by appellants, Reynolds and others, before the board of commissioners of Porter county to obtain the location and opening of a certain public highway in such county. Upon the presentation of their petition, and proof of proper notice, viewers were appointed by the county board to view and locate the proposed highway; and thereafter such viewers reported to the board in favor of the location and opening of such highway, and that it would be of public utility. Thereupon the appellee John Shults appeared and filed before the county board his written remonstrance against the location and opening of the proposed highway, upon two grounds, namely: (1) Such highway was and would be of no public utility; and (2) remonstrant Shults would sustain damages by the opening and location of the proposed public highway, in the sum of $1,000, in that it would appropriate one and one-half acres of his land, and he would be compelled thereby to build and maintain 240 rods of additional fences, etc. Upon this remonstrance the county board appointed reviewers of such proposed highway, and ordered them to determine, first, upon the public utility of such highway, and, if they found it was or would be of public utility, to ascertain and assess the damages which appellee Shults would sustain by the location and opening of the proposed highway. Afterwards the reviewers reported to the county board that they were of the opinion that such highway “would not be of public utility,” and, of course, their report was entirely silent upon the question of the damages of the remonstrant Shults. Thereupon the court confirmed the reviewers' report, and accordingly ordered that the proposed public highway should not be established. From this order of the county board the suit or proceeding was taken, by appeal by the petitioners for the proposed public highway, Reynolds and others, to the circuit court of Porter county. There the cause was tried by a jury, and a verdict was returned as follows:

“We, the jury, find for the plaintiffs that the proposed highway is of public utility; and we find for the defendant Shults and assess his damages at four hundred dollars, and we find for the defendant Fish and assess her damages at one hundred dollars.”

Upon this verdict the court adjudged that the public highway for the location of which the appellants prayed in their petition herein (describing the same) was and would be of public utility; that appellee Shults would be damaged by the location and opening of such highway in the sum of $400; and that appellee Louise Fish would be damaged by such highway in the sum of one hundred dollars,-to which judgments, as to damages, appellants at the time excepted. It was further adjudged by the court that the cause be remanded to the county board to locate such proposed highway, and pay such damages, if the board should consider such highway to be of sufficient importance to the public. It was also adjudged that appellants recover of appellee Shults their costs on the issue as to the public utility of the proposed highway; and that appellee Shults recover of appellants his costs on the issue as to his damages by reason of the location of such highway; to which latter judgment appellants at the time excepted. Appellants' motion for judgment for all their costs against appellee Shults, and their motion to modify the judgment, were overruled by the court, and they excepted, and filed their bill of exceptions.

A number of errors have been assigned by appellants upon the record of this cause. Without setting out these errors we will consider and decide such questions as seem to us to be fairly presented thereby, and to be properly saved in the record.

In their brief of this cause appellants' counsel very earnestly insist that the judgments below, either for damages or for costs, are erroneous, and cannot be sustained. If counsel are right in their position as to the judgments for damages, they are necessarily right as to the judgment for costs; because, if from any cause shown by the record appellee...