Wagner v. Meyer

• Decision Date: 02 April 1913
• Docket Number: No. 7,860.,7,860.
• Citation: 101 N.E. 397,53 Ind.App. 223
• Parties: WAGNER v. MEYER et al.
• Court: Indiana Appellate Court

53 Ind.App. 223

101 N.E. 397

WAGNER

v.MEYER et al.

No. 7,860.

Appellate Court of Indiana, Division No. 2.

April 2, 1913.

Appeal from Circuit Court, Ripley County; Francis M. Thompson, Judge.

Action by Henry Wagner against Peter Meyer and others.Judgment for defendants, and plaintiff appeals.Affirmed.Nicholas Cornet and Roland H. Jackson, both of Versailles, Edwin W. Spencer and William W. Spencer, both of Indianapolis, and John B. Rebuck, of Versailles, for appellant.Thomas E. Willson, of Osgood, Charles H. Willson, of Versailles, and Charles R. Willson and Romney L. Willson, both of Indianapolis, for appellees.

IBACH, C. J.

This suit was brought by appellant to enjoin appellees from cutting and removing a fence and from plowing up and digging up and removing the dirt and earth from appellant's real estate.Appellees, in answer to the complaint, alleged that the fence was in the limits of the highway, and they as trustees of the township and supervisor of roads, respectively, were proceeding to move the fence because it was in the highway and the appellant had refused upon due notice to move it.The errors assigned arise under the motion for new trial.

[1] The evidence shows that the highway was ordered laid out by the county commissioners in 1887 30 feet wide on the east and west center line of section 17, town 8 N., range 11 E. Appellant owned land on the north side of and extending to the center line of section 17.The highway was laid out in 1887, and there was evidence tending to show that it had always been located where it now is.The records of several different surveys were introduced in evidence, by each of which there had been attempts to locate the east and west center line of section 17 as it has been originally laid out.Some of these surveys showed appellant's fence to be nearer than 15 feet to the center of the highway, and therefore within its limits.There was some conflict as to whether appellant had for more than 20 years held possession of the land within his fence under claim of right.The evidence is conflicting; we cannot say that there is no evidence from which the court could find that appellant's fence was within the limits of the highway, and the decision cannot be disturbed on the ground that it is not sustained by the evidence.

[2][3]Appellant, citing Williams v. Atkinson, 152 Ind. 98, 52 N. E. 603, asserts that the surveys of Cavender, Huges, Pegee, and Wright were void, and should not be...