Seisler v. Smith

Decision Date27 April 1897
PartiesSEISLER v. SMITH et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Wabash county; H. B. Shively, Judge.

Suit by John Seisler against George Smith and others. Judgment for defendants. Plaintiff appeals. Affirmed.

M. Winfield and Sayre & Conner, for appellant. James M. Brown, Nott N. Antrim, and Loveland & Loveland, for appellees.

HACKNEY, J.

This was a suit by the appellant, John Seisler, against the appellees, George Smith and the board of commissioners of Miami county, in two paragraphs of complaint. From each paragraph it appeared that the lands of the county held for a poor asylum were separated from those of the appellant and the appellee Smith, severally, by a section line running east and west, and those of the appellee lay between the appellant's tract and a prominent highway running north and south. The first paragraph claimed an ancient easement in the nature of a private way over said section line from said highway back to the lands of the appellant, and which in the year 1880, by agreement, had been closed, and another way, over the lands of Smith, substituted, and which substituted way Smith now refuses appellant the right to use. The relief prayed was that the obstructions of the original way be declared a nuisance and removed, that the appellees be enjoined from obstructing or interfering with the use of said way, and for damages. The second paragraph alleged the existence from 1840 to 1880 of a public highway corresponding with the location of said alleged private way, which during all of said period had been used by the public generally as a highway, with the knowledge and concurrence of the various owners from time to time of said lands, and that in said latter year the appellees had obstructed said alleged highway with fences, which they have ever since maintained. The relief prayed was as in the first paragraph, omitting damages. Issue by general denial. Change of venue to the Wabash circuit court. Trial by the court, with the submission of special facts to a jury. The findings of fact by the jury were disregarded by the court, and a general finding and judgment were rendered in favor of the appellees. The errors assigned are the overruling of appellant's motion for a new trial for cause; overruling his motion for a new trial as of right; (3) * * * disregarding the verdict of the jury, and finding for the appellees; (4) * * * rendering judgment for the appellees.”

By agreement, and certainly by the rules of practice, the cause was regarded as of equitable cognizance. It was therefore the province of the court to enter its own finding, and it could not be error to disregard “the verdict of the jury.” Ketcham v. Coal Co., 88 Ind. 515;Pence v. Garrison, 93 Ind. 345;Bank v. Butterfield, 100 Ind. 229;Jennings v. Durham, 101 Ind. 391. That the court erred in rendering judgment is not a “specific assignment” of error, as contemplated by section 667, Rev. St. 1894 (section 655, Rev. St. 1881); McGinnis v. Boyd (Ind. Sup.) 42 N. E. 678;Hawks v. Mayor, etc. (Ind. Sup.) 43 N. E. 304. The questions discussed by counsel, however, arise upon the motions for a new trial. The first of these relates to the sufficiency of the evidence, under the second paragraph of complaint, to prove the existence of a highway upon the line in question. It is conceded by counsel for appellant that this court is denied the power to review a question depending upon conflicting evidence, but they urge that there is no conflict, since, as they claim, appellant's evidence was of a positive character, while that of appellees, they further claim, was to the effect that the witnesses knew of no such road, and was of a negative character, not creating conflict. The evidence upon which appellant relies in this contention is as to the course and extent of travel from the said prominent highway across to the tract owned by him, beginning in the year 1840; as to the removal of timber along said section line between said two points, as defining the way, and the placing of brush and logs in the low, wet places. The evidence which is said to be negative and to create no conflict was, much of it, from persons who lived in the immediate neighborhood, and were interested in highways, as township trustees, and interested in the “poor farm,” as superintendents and county commissioners, and in some of the lands accessible from any such way, as farmers. These, whose interests and opportunities would probably bring knowledge, deny the removal of timber and the opening of a road; deny the use of a way upon said section line, and claim that there was but an irregular travel, by devious paths, through the uninclosed and wooded land, and that at some distance south of the section line; and they deny ever hearing of or seeing a highway...

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6 cases
  • Maynard v. Waidlich
    • United States
    • Supreme Court of Indiana
    • 9 Mayo 1901
    ......Cottingham, 152 Ind. 135, 136-138, 52 N. E. 702, and cases cited; Jones v. Mayne, 154 Ind. 400, 402, 403, 55 N. E. 956, and cases cited; Smith v. Barber, 153 Ind. 322, 332, 53 N. E. 1014.        The judgment in this case strictly followed the conclusions of law, and was rendered in ...Hawks v. City of Goshen, 144 Ind. 343, 349, 43 N. E. 304, and cases cited; McGinnis v. Boyd, 144 Ind. 393, 42 N. E. 678;Seisler v. Smith, 150 Ind. 88, 90, 46 N. E. 993, and cases cited; Evans v. State, 150 Ind. 651, 655, 656, 50 N. E. 820, and cases cited.         [60 ......
  • Maynard v. Waidlich
    • United States
    • Supreme Court of Indiana
    • 9 Mayo 1901
    ......135,. 136-138, 52 N.E. 702, and cases cited; Jones v. Mayne, 154 Ind. 400, 402, 403, 55 N.E. 956, and. cases cited; Smith v. Barber, 153 Ind. 322,. 332, 53 N.E. 1014. . .           The. judgment in this case strictly followed the conclusions of. law, ... Hawks v. Mayor, 144 Ind. 343, 349, 43 N.E. 304, and cases cited; McGinnis v. Boyd, 144. Ind. 393, 42 N.E. 678; Seisler v. Smith, . 150 Ind. 88, 90, 46 N.E. 993, and cases cited; Evans . v. State, 150 Ind. 651, 655, 656, 50 N.E. 820, and. cases cited. [60 ......
  • Seisler v. Smith
    • United States
    • Supreme Court of Indiana
    • 27 Abril 1897
  • Theobald v. Clapp
    • United States
    • Court of Appeals of Indiana
    • 26 Enero 1909
    ......Hill v. Indianapolis, etc., R. Co., 31 Ind. App. 98, 99, 67 N. E. 276;Johnston Glass Co. v. Lucas, 34 Ind. App. 418, 419, 72 N. E. 1102;Seisler v. Smith, 150 Ind. 88, 46 N. E. 993, and cases cited; Kimberlin v. Tow, 133 Ind. 696, 33 N. E. 770;Lewis v. Albertson, 23 Ind. App. 147, 157, 53 N. ......
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