Shellhouse v. State

• Decision Date: 27 April 1887
• Docket Number: 11,244
• Citation: Shellhouse v. State, 110 Ind. 509, 11 N.E. 484 (Ind. 1887)
• Parties: Shellhouse et al. v. The State
• Court: Indiana Supreme Court

11 N.E. 484

110 Ind. 509

Shellhouse et al. v. The State

No. 11,244

Supreme Court of Indiana

April 27, 1887

From the Marion Criminal Court.

Judgment reversed.

J. T Dye and W. P. Fishback, for appellants.

S Claypool and W. A. Ketcham, for the State.

OPINION

Mitchell, J.

The appellants, Shellhouse, Phillips and Lockwood, were prosecuted upon a joint information, in which they were charged with having unlawfully obstructed a public alley in the city of Indianapolis, which alley, it was charged extended east from East street to Liberty street, between Washington and Maryland streets.

It was charged that the obstruction of the alley was occasioned by the erection and maintenance thereon, by the appellants, of a permanent structure, consisting of a high board fence and wall across the alley, at a point two hundred and fifty feet east of East street.

The defendants were found guilty, and each was assessed with a fine of one dollar and costs.

There is no dispute but that the structure complained of was erected by the defendants, nor is it denied--if the locus in quo is an alley, as is claimed by the State--that the erection and maintenance of the wall and fence constitute an unlawful obstruction of a public way.

The matter in controversy is as to whether or not the place obstructed is, or ever was, a public alley.The State affirms that it is, and ought so to continue, and that the defendants, by erecting and maintaining the obstructions complained of, became the authors of a continuing nuisance.This the appellants deny, and assert that the place in question is part of their own freehold, and never was in any manner dedicated to the public, nor in any other manner constituted a public alley.

The State makes no claim that the alley was ever indicated upon any plat or subdivision of the land or lots through or over which it is asserted that a public passage-way exists, except at the east end of the block in controversy.It does not appear from the evidence, and it is not claimed, that the alleged alley was ever located or opened by any public body having authority to lay out and open streets, alleys or highways; nor is there any claim that the public authorities ever did anything to recognize the existence of an alley at the place in question.

It is claimed that the alley traverses out-lots 83 and 84, from east to west.Certain plats of subdivisions of these lots appear in the record.These indicate that an alley, thirty feet in width, was located on the west half of out-lot 84.On the east half of the last named lot, and on out-lot 83, as also the lots adjoining that last named on the east, the plats give no indication of any alley.Numerous conveyances of the various subdivisions of these lots also appear in the record.No mention of, or allusion to, an alley or other passage-way, of any description, is found in any of these conveyances.

There are two theories upon which it is claimed, in support of the judgment of conviction, that an alley has been established.The first is an alleged prescriptive right, growing out of twenty years and more of continuous, uninterrupted user by the public.The other is that there has been a dedication of the ground by the several owners to the public, to be used as a public alley.

Without rehearsing the evidence, it is enough to say it comes far short of sustaining either theory.

If it were granted that a right of way might be acquired over an uninclosed lot or lots, in a city or town, by twenty years' user by the public, a proposition open to much doubt, the evidence in the record fails to show that the public habitually used any particular or defined way over the lots in question.That persons exercised the privilege of driving over the lots at pleasure in an irregular way, while they remained uninclosed, may be conceded, and that as some of the lots were enclosed and improved, barns and other outbuildings were erected so as to leave room for approach by what is now claimed as a public alley, and that the space so left was sometimes used by the public may also be conceded.This, however, is not sufficient to establish a public way by prescription.Before a highway can be thus established, it must appear that the general public, under a claim of right and not by mere permission of the owner, used some defined way, without interruption or substantial change, for a period of twenty years or more.Stephenson v. Farmer,49 Ind. 234;State v. Green,41 Iowa 693;2 Dillon Munic.Corp., sec. 637;Chestnut Hill, etc., T. P. Co. v. Piper,77 Pa. 432;Talbott v. Grace,30 Ind. 389;Pentland...