Tucker v. Conrad

• Decision Date: 27 October 1885
• Citation: Tucker v. Conrad, 103 Ind. 349, 2 N. E. 803 (Ind. 1885)
• Parties: Tucker and others v. Conrad.
• Court: Indiana Supreme Court

103 Ind. 349

2 N.E. 803

Tucker and others

v.Conrad.¹

Supreme Court of Indiana.

Filed October 27, 1885.

Appeal from Kosciusko circuit court.

Haymond & Royse, H. S. Briggs, and Joseph W. Cook, for appellants.

Frazer & Frazer, for appellee.

Howk, J.

In this casethe appellee, Conrad, sued the appellants, Tucker, Greene, and the city of Warsaw, in a complaint of two paragraphs.The object of the suit was to recover damages for breaking and entering, as alleged, the appellee's close, destroying his fences, etc.The close in question is described as lot No. 58, in the original plat of the town, now city, of Warsaw, in Kosciusko county.The appellants' defense was that such lot or close had, with the acquiescence of the owners thereof from time to time, and by its long user by the public as a thoroughfare, become a public street or highway of the town or city of Warsaw.Issues were joined in the cause by the appellants' answers in general denial of appellee's complaint; under which answers it was agreed by all the parties to the record that all proper matters of defense or reply, without having been specially pleaded, might be given in evidence.The cause was tried by a jury and a special verdict was returned, whereon the appellants, as well as the appellee, moved the court for judgment.The appellants' motions were severally overruled, but the court sustained the appellee's motion and rendered judgment in his favor for the damages assessed, and costs.

Errors are assigned here by the appellants which call in question the rulings of the trial court upon the several motions for judgment on the special verdict.The findings of the jury, in their special verdict, are stated in separate paragraphs, numbered from 1 to 23, both inclusive.Of these, the first 10 paragraphs contain an equal number of links in the chain of appellee's title to the lot in controversy, giving the kind and date of each deed, and the names and residences of the grantors and grantees, respectively, therein.In this chain of title the first deed was dated October 20, 1836, and the last deed, which was executed to the appellee, was dated July 18, 1867; and the jury found that the “plaintiff, Conrad, had been the owner of said lot No. 58 ever since said eighteenth day of July, 1867, to the present time, and is still the owner thereof.”In the remaining paragraphs of their special verdict the findings of the jury were in substance as follows:

(11) In December, 1846, a road was opened, being the road now in controversy, commencing on Buffalo street, in the town, now city, of Warsaw, and ran diagonally across said lot No. 58, north 45° east, until it intersected a public highway known as the Warsaw and Goshen road, which last mentioned highway was then, and has been since, known in the town, now city, of Warsaw as Detroit street.

(12) Said road, passing diagonally over such lot 58, was opened up by the public in December, 1846, as a public highway, and it was at that time intended by the public that it should be a public highway, and has been ever since, until July 1, 1866, at which time it was obstructed by a fence built by John R. Nye; and money and labor have been expended thereon by the public authorities from year to year, from the last-mentioned date until the present time; and such road has been occupied, used, and traveled by the public generally as a public highway from July 1, 1866, up to the present time, and it has been constantly used by the public.

(13)The plaintiff, on or about the twenty-third of May, 1882, built a board fence across such public highway in and upon said lot No. 58, and thereby wholly obstructed the travel thereon.On or about the twenty-fifth day of May, 1882, the defendantEdmund J. Greene, as the then mayor of the city of Warsaw, and the defendantCalvin Tucker, as the then city marshal and street commissioner of the city of Warsaw, as such public officers, directed so much of said fence as obstructed said public highway to be taken down and removed, and no more; and no more of such fence was in fact removed than what obstructed such public highway.

(14) By the direction of such officers of the city of Warsaw so much of said fence as obstructed said public highway was, on or about the twenty-third day of May, 1882, removed, and no more, and the same was removed in a careful manner, thereby doing no more damage to the lumber and material composing such fence, and to the premises, than was necessary to remove the obstruction.

(15) The road in controversy passing diagonally over lot 58 had been used continuously, excepting the time it was obstructed by John R. Nye, as aforesaid, by the general public as a public highway, and worked by the public authorities for more than 20 years prior to the commission of the grievances complained of, with the knowledge and acquiescence of the owners of said lot.

(16) Prior to the commission of the acts complained of by plaintiff in this action, the said Henry C. Millice, while he was seized in fee of said lot 58, allowed the portion of such lot occupied by said public highway to be used for the purpose of a public highway, and the public then and there accepted the same, and have worked and continually used and traveled the same from that time to the present, except when obstructed by plaintiff as aforesaid.

(17)The plaintiff, Conrad, was the owner of said lot 58 for about 15 years before he built the fence thereon described in his complaint.During all such time there was a road passing over and across said lot, being the road in controversy, which was continuously used by the public as a public highway, and was worked and kept in repair by the public authorities; and during all said time the plaintiff, Conrad, resided in the town, now city, of Warsaw, and had full knowledge all the time that such road was so used, traveled, and worked by the public, and during all said time neither by word nor act made any objection thereto.

(18) Since the location of the road in controversy on said lot 58, an addition to the city of Warsaw has been laid out north of such lot, on the west side of said Buffalo street, and all the lots in such addition have been improved, and residences and ice-houses built thereon north to the lake; and the people residing in such addition have no means of ingress and egress eastward, except on and along such public highway in controversy; and if such public highway were closed up, their said property would be of less value than it now is; and on the east side of said Buffalo street an addition has been laid out to the city of Warsaw, which would be less valuable if such public highway were closed up.

(19) The public highway in controversy is a public highway of general public utility.

(20) The cost occasioned by the removal of such fence, to replace the fence, is of the value of $5.

(21) Since the location of the public highway in controversy, an addition to the town, now city, of Warsaw was laid out immediately east of the eastern terminus of such public highway, and a portion of the lots in such addition have been improved by the erection of residences thereon; all of which property would be of less value if such public highway were closed up.

(22) At the time of the location of the public highway in controversy over and across said lot No. 58, such lot had only a nominal value.

(23) And we further find that the public highway, at its eastern terminuson Buffalo street, has been moved a little to the north of its original location.

Upon the facts found by the jury in their special verdict, the substance of which we have given, did the trial court err in rendering judgment for the appellee?Or, in other words, are those facts sufficient to show a dedication by the appellee, or any of his grantors, near or remote, of his lot in the town or ...