Smith v. Goodknight

• Decision Date: 19 December 1889
• Docket Number: 15,155
• Citation: 23 N.E. 148,121 Ind. 312
• Parties: Smith v. Goodknight et al
• Court: Indiana Supreme Court

23 N.E. 148

121 Ind. 312

Smith v. Goodknight et al

No. 15,155

Supreme Court of Indiana

December 19, 1889

From the Tipton Circuit Court.

Judgment affirmed, with costs.

R. B Beauchamp, W. W. Mount, G. H. Gifford and J. M. Fippen, for appellant.

J. N Waugh, J. P. Kemp, J. C. Blacklidge, W. E. Blacklidge and B C. Moon, for appellees.

OPINION

Olds, J.

The appellant filed his complaint in the Tipton Circuit Court against the appellees, Isaac N. Goodknight, Jefferson Kemp, Silas I. Davis and Don Hinkle, for injunction. The complaint is in two paragraphs, the averments of which are substantially the same.

Appellees demurred separately to each paragraph of the complaint for the cause that neither of said paragraphs stated facts sufficient to constitute a cause of action.

The court sustained the demurrer to each paragraph, to which ruling appellant at the time excepted, and assigns such ruling as error.

The facts alleged in the complaint are substantially as follows: That on the 11th day of March, 1888, the board of commissioners of the county of Tipton ordered the construction of a gravel road in the county of Tipton, known as the Tipton, Normanda and Kempton free gravel road, describing the location and route of the road. It is then averred that afterwards, on the 12th day of March, 1889, said road was contracted to appellees, Isaac N. Goodknight and Jefferson Kemp, for construction; that said defendants Goodknight and Kemp, by their contract, were to do all the work and furnish all the material for the gravelling of said road; that the plaintiff is informed and believes that said contractors have sublet a part of the contract to the defendants Davis and Hinkle. It is further averred that on the 11th day of March, 1889, the board of commissioners ordered and adjudged that gravel road number 20 be located on the following route, describing it; that said last-mentioned road has not been contracted, but that all preliminary steps have been taken for the same; that said road is to be constructed whenever the bonds for the building of said road can be legally sold, and many other steps taken as required by law, and the cost of said improvement has been estimated; that plaintiff has several hundred acres of lands which are affected by said highway, and will be taxed for its construction; that he has, as he believes, gravel and materials situated on his land, which land is described as follows, setting out a description; that said gravel is such as was contemplated and specified in the orders of the court for the construction of said road No. 20; that said gravel and material is the most convenient, and of the best quality, that can be reached for the construction of a large portion of said gravel road No. 20; that the estimate for the construction of said last-mentioned gravel road was made upon the basis and with the view of said road, or a large amount of it, being constructed and built out of said gravel; that he believes said road can not be constructed for the estimated cost thereof if said gravel is used for the construction of the first-mentioned road; that said gravel is a necessity, as plaintiff believes, for the building of said gravel road No. 20.

It is further averred, that the contractors on the Tipton, Normanda and Kempton gravel road are proceeding to survey, and are now surveying said land preparatory to condemning said land, or gravel thereon, for the use and construction of said gravel road; that plaintiff is informed, and believes, that if said parties are not restrained they will condemn said gravel and use the same in the construction of said road, thereby defeating gravel road No....