Strong v. Makeever

• Decision Date: 10 June 1885
• Docket Number: 11,671
• Citation: 1 N.E. 502,102 Ind. 578
• Parties: Strong, Trustee, v. Makeever et al
• Court: Indiana Supreme Court

1 N.E. 502

102 Ind. 578

Strong, Trustee, v. Makeever et al

No. 11,671

Supreme Court of Indiana

June 10, 1885

Reported at: 102 Ind. 578 at 587.

From the Newton Circuit Court.

The judgment is reversed with costs, and the cause remanded, with instructions to the court to sustain appellant's motion for a new trial.

F. W Babcock, for appellant.

S. P Thompson and W. B. Austin, for appellees.

OPINION

Zollars, J.

This case was tried in the Newton Circuit Court on a change of venue from Jasper county, where it originated.Section 5035 R. S. 1881, is as follows: "All public highways which have been or may hereafter be used as such for twenty years or more shall be deemed public highways; and the board of county commissioners shall have power to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as have been used for twenty years but not recorded, to be ascertained, described, and entered of record."

Invoking the exercise of the authority conferred by this statute, appellees filed their petition with the board of commissioners of Jasper county, in September, 1882, stating therein that a certain highway, five and one-half miles in length, partly in Marion and partly in Newton townships, Jasper county, had been laid out forty feet wide, one-half on either side of the line dividing certain named sections of land; that for twenty years this highway, thus laid out, has been used and travelled as such, and that it has not been recorded as a highway.It is further stated, that some of the adjoining land-owners, during that year, had encroached upon the highway by putting their fences thereon.Against this, the petitioners enter their protest, and ask that the board of commissioners ascertain what portions of the highway have not been properly recorded, and ascertain and enter said highway of record, so that the existence thereof may be preserved, and the proper road superintendent be enabled to take charge of and keep in repair said highway, etc.

William D. Saylor, superintendent of roads in Newton township, appeared in the commissioners' court and objected to the making of the order as asked by the petitioners, so far as it might affect the highway in that township.In his written objections, he stated that the highway, in that township, had not been laid out on the section line as stated in appellees' petition; that there was a public highway in that township near the said section line, and parallel or nearly parallel therewith, which had been used continuously for more than twenty years as a public highway, the boundaries of which were easily ascertainable by the fences which had been maintained on either side from the time the road was opened; that large sums of public money had been expended upon the highway in the way of clearing, grades, fills, ditches, bridges, etc., and that the way could not be changed without materially affecting public and private rights, etc.There being no issue as to that portion of the highway in the other township, an order was made that it be recorded, etc.As to the portion in Newton township, the answer and remonstrance of the superintendent tendered an issue which was tried by the board and decided against him, and an order made that the record should be made as asked by the petitioners, and that the superintendent of roads should keep the highway open for travel, etc.From this order the superintendent appealed to the circuit court.His office, in the meantime, having been abolished, appellant, as the township trustee, was substituted.A like judgment was rendered in the Newton Circuit Court, and from this appellant prosecutes this appeal.

For a reversal of the judgment, appellant relies upon the alleged error of the court below in overruling his motion for a new trial.For the purpose of showing that the west mile of the highway in Newton township had been established upon the section line, as averred in their petition, appellees read in evidence, over appellant's objections and exceptions, a transcript of proceedings by the board of trustees of Newton township, in 1856.That was a proceeding instituted under 1 R. S. 1852, p. 313, et seq., to have a highway changed and relocated.It nowhere appears in that transcript how wide the highway was, which it was sought to vacate, and what is more important and fatal, it nowhere appears in the transcript how wide the highway was which the trustees attempted to establish.For this reason, the final order of the trustees locating the highway was absolutely void, and the transcript was not competent evidence.White v. Conover,5 Blackf. 462;Carlton v. State,8 Blackf. 208;Barnard v. Haworth,9 Ind. 103;DeLong v. Schimmel,58 Ind. 64;State v. Schultz,57 Ind. 19;Erwin v. Fulk,94 Ind. 235.

The admission of the transcript in evidence was such error as requires a reversal of the judgment, but as some other questions are presented by the record, which would necessarily arise again upon a re-trial, we proceed to examine and decide them.

As will be seen from the statement of the case, the controversy is about the two miles of the road in Newton township, and more especially about the west mile.Just when the east mile of this portion of the road was opened for travel is not shown by the record, but it was prior to 1857.In 1857, the west mile was opened for travel, and thus there was a continuous line of road, forty feet wide, from the east line of the township, two miles west, or nearly west.At the east end, or township line, the center of the road is on the section line as that line was fixed by a survey in 1879.At the west end of the first mile from the east, the center of the road is about two feet north of the section line.At the west end of the two miles, the entire highway of forty feet is north of the section line.In order to make the west mile available it was necessary to clear away timber and underbrush, grade down a hill or elevation, make an embankment through a morass, cut ditches along the side of the road for a part of the way, and to construct bridges over the ditches, all of which was done soon after the road was opened.This portion of the road was opened with the knowledge and consent of the adjacent land-owners, all of whom still own the land, except appelleeDaniel S. Makeever, who has since bought one of the adjoining tracts of land.These land-owners directed that the road should be so located that the center of it should correspond with the east and west fence dividing their lands, which fence they supposed stood upon the section line.They supposed too, that the road was being thus located in accordance with the order of the board of township trustees, for which order they had petitioned.Upon their petition also, another highway was abandoned in order that this might be opened.When the road was opened, they moved their partition fence and built fences on either side of the road, and twenty feet from the center of it.From that time until this proceeding was commenced, more than twenty-five years, with a slight interruption which we shall mention, these fences have been maintained, and this highway, thus opened and constructed, has been open for travel, and has been worked and kept in repair by the public authorities.To change the highway so as to put the center of it upon the section line as that line was fixed by the survey in 1879, and as the order of the court below would require, would necessitate another grade of the hill or elevation, the construction of a new fill through the morass, which, for a part of the way, would fall upon the line of one of the side ditches, the removal...