Thrall v. Gosnell

• Decision Date: 09 January 1902
• Citation: 62 N.E. 462,28 Ind.App. 174
• Parties: THRALL et al. v. GOSNELL et al.
• Court: Indiana Appellate Court

28 Ind.App. 174

62 N.E. 462

THRALL et al.

v.GOSNELL et al.

Appellate Court of Indiana, Division No. 2.

Jan. 9, 1902.

Appeal from circuit court, Rush county; Douglas Morris, Judge.

Petition by Perry Gosnell and others for the location of a highway. From an order of the circuit court affirming the judgment of the board of commissioners in favor of petitioners, Mary E. Thrall and others appeal. Reversed.C. W. Mahn, B. A. Wilkins, W. H. Martin, and J. D. Megee, for appellants. Smith, Cambern & Smith, for appellees.

ROBY, J.

Appellees filed a petition for the location of a public highway, and the board of commissioners of Rush county, at its September term, 1899, found that notice thereof had been given; that the petition was signed by 12 freeholders, 6 of whom resided in the immediate neighborhood of the proposed highway, and it thereupon appointed viewers in accordance with the statute, with direction to report at the October term. At that term the viewers reported that the proposed highway would be of public utility, and that they had viewed and laid the same out as in the petition described. Remonstrances were separately filed by 7 interested parties, in which the public utility of the proposed highway was denied, and damages on account of its location demanded. Reviewers were thereupon appointed, with directions to report at the November term. On the second day of that term, and before the reviewers' report had been filed, the petitioners asked leave to amend their petition, upon which the defendants moved “to dismiss the amended petition, for the reasons (1) that it is not signed by the requisite number of freeholders; and (2) because no notice was given of its presentation.” This motion was overruled, leave given to amend, and an amended petition filed, which differed from the original, in that the proposed highway was reduced in length from 2 1/2 miles to 1 3/4 miles. It was signed, “Smith, Cambern & Smith, for petitioners;” no individual petitioner subscribing his name thereto. Thereupon the reviewers previously appointed by the board filed their report, which was “accepted,” and a new set of viewers appointed, with directions to lay out and report upon the public utility of the proposed highway. This report was afterwards made in favor of the improvement, as in the first instance, and the road was ordered opened, upon the payment of damages as assessed by the reviewers. From such judgment the appellants herein appealed to the circuit court, where the motion to dismiss was renewed and overruled. The correctness of this ruling presents the first question for the consideration of this court.

There seems to be some disagreement among the authorities as to whether it must appear upon the face of the petition for the location of a public highway that 12 of the persons whose names are subscribed thereto are freeholders of the county, and that 6 of them reside in the immediate neighborhood of the proposed highway. The affirmative of the proposition is declared in the following cases: Conaway v. Ascherman, 94 Ind. 189;Early v. Hamilton, 75 Ind. 376;Watson v. Crowsore, 93 Ind. 220; the negative in Brown v. McCord, 20 Ind. 270;Ice Co. v. Lay, 103 Ind. 48, 52. 2 N. E. 222;Huff v. City of Lafayette, 108 Ind. 14, 8 N. E. 701;Head v. Doehleman, 148 Ind. 145, 46 N. E. 585. But the cases are all agreed that unless such facts are established the board has no jurisdiction. Little v. Thompson, 24 Ind. 146;Irwin v. Armuth, 129 Ind. 341, 28 N. E. 702;Forsyth v. Wilcox, 143 Ind. 144, 41 N. E. 371; Head v. Doehleman, supra. The reason for the statutory provision (section 6742, Burns' Rev. St. 1901; section 5015, Horner's Rev. St. 1901) is that in its absence the machinery of the law might be set in motion by persons having no interest in the subject-matter of the proceeding and unaffected by the proposed improvement, thereby putting interested landowners to the expense of useless litigation or of making undesired improvements. Conaway v. Ascherman, supra.

The power to allow amendments to petitions in highway cases is well established. Hedrick v. Hedrick, 55 Ind. 78;Burns v. Simmons, 101 Ind. 557, 1 N. E. 72;McKeen v. Porter, 134 Ind. 483, 34 N. E. 223;Bronnenburg v. O'Bryant, 139 Ind. 17, 38 N. E. 416. The exercise of such power is not unlimited, but is subject to review. Burns v. Simmons, supra. The courts exercise greater liberality in allowing the defendant to amend his answer than in permitting the plaintiff to amend his complaint, for the reason that the plaintiff...