Sunderland v. Martin

• Decision Date: 18 February 1888
• Docket Number: 13,022
• Parties: Sunderland et al. v. Martin et al
• Court: Indiana Supreme Court

15 N.E. 689

113 Ind. 411

Sunderland et al. v. Martin et al

No. 13,022

Supreme Court of Indiana

February 18, 1888

From the Delaware Circuit Court.

Judgment affirmed, with costs.

W Brotherton and C. E. Shipley, for appellants.

J. R McMahan, T. F. Rose and E. M. White, for appellees.

OPINION

Mitchell, C. J.

This was a proceeding by William Sunderland, David W. Jones and others, to enjoin the township trustee of Salem township, in Delaware county, and the supervisor and others of District No. One (1), in the above named township, from obstructing or interfering with a certain public highway in the district mentioned.

The complaint alleges that certain of the defendants petitioned the board of commissioners of Delaware county for permission to change the location of the highway in question on their own lands, and that upon such petition viewers had been appointed, who reported that the change petitioned for would be of public utility. It is averred that the board of commissioners approved the report, and directed the auditor to notify the township trustee accordingly.

The complaint charges that the proceedings under which the petitioners were granted permission to change the course of the highway on their own lands were void, and, among other reasons assigned in support of the alleged invalidity of the proceedings, it is asserted that the line, direction and route of the change are not fixed by the order, and that the order of the board does not fix the width of the proposed change.

The complaint charges further, that the defendants have fenced up and obstructed the highway as it was originally laid and opened, and as it existed prior to the proposed change, under the false pretence that the road as changed has been opened and improved so as to be as passable and convenient for travellers as was the old highway. It also charges that the township trustee has directed the road supervisor to take charge of the road as changed, and put and keep the same in repair as a part of the public highway, and that the road supervisor, with the road money in his hands, and employing the road labor of his district, was then engaged in constructing a road upon the route as changed.

The plaintiffs allege that they are property-owners and taxpayers, residing in the road district in which the road in controversy is situate, and that they have a personal and peculiar interest in maintaining the highway open upon the line on which it was laid and used prior to the alleged change. The personal and peculiar interest which the plaintiffs allege they have in the old road is, that it affords access to a public cemetery in which members of their respective families are interred.

It is apparent that the proceedings assailed were intended to conform to the provisions of sections 5046 to 5051, R. S 1881. These sections make provision whereby the owner or owners of land may, upon due petition, obtain the permission of the board of commissioners to change the location and course of a public highway on their own lands. We need not inquire as to the procedure in such cases, nor whether a valid statutory change was effected in the present case or not. There is no pretence that the change, either directly or indirectly, affects or takes any of the lands belonging to the plaintiffs or in which they have any interest. The...