Weaver v. Ferguson

• Citation: 117 N.E. 659,68 Ind.App. 169
• Decision Date: 21 November 1917
• Docket Number: No. 9308.,9308.
• Parties: WEAVER et al. v. FERGUSON et al.
• Court: Court of Appeals of Indiana

68 Ind.App. 169

117 N.E. 659

WEAVER et al.

v.FERGUSON et al.

No. 9308.

Appellate Court of Indiana, Division No. 2.

Nov. 21, 1917.

Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge.

Action by Sarah E. and David S. Ferguson to enjoin John R. Weaver, road supervisor, and others, from opening an alleged public highway. Judgment for plaintiffs, and defendants appeal. Affirmed.O. B. Ratcliff, of Covington, for appellants. C. B. Philpott and A. T. Livengood, both of Covington, for appellees.

CALDWELL, J.

When this action was commenced and disposed of in the trial court, appellant Newlin was auditor of Fountain county, appellant Dicken was trustee of Troy township, said county, and appellant Weaver was road supervisor of district No. 1, said township. Appellees Sarah E. and David S. Ferguson brought this action to enjoin appellants as officials from opening an alleged public highway in said district, respecting the legality of the establishing of which there is controversy. A trial resulted in a special finding and conclusions of law. Judgment was rendered on the conclusions in favor of appellees, enjoining appellants as prayed.

The questions presented on this appeal arise from appellants' exceptions reserved separately and severally to the conclusions of law. The following includes the substance of the finding necessary to determine the questions involved: February 12, 1913, and thereafter, appellee Sarah E. Ferguson was the owner of the northeast quarter, and appellee David S. Ferguson was the owner of the east half of the southwest quarter and the west half of the southeast quarter, of section 23, township 20 north, range 9 west, Fountain county. On that day, the requisite number of qualified freeholders, not including appellees, proceeding under section 7649, Burns 1914, filed their petition praying that a public highway 30 feet wide be located and opened up, its north line commencing at a designated point on the east and west half section line near the center of section 22, and extending east along said line to a designated point about 80 rods east of the center of section 23, said township and range. Subsequent proceedings were thereafter regularly had, under section 7649 supra, et seq., resulting in the filing of a reviewer's report April 18, 1913, finding against David S. Ferguson on his remonstrance challenging the utility of the road, and in his favor on his remonstrance asking damages, awarding him $300. Sarah E. Ferguson filed no remonstrance or other pleading before the board of commissioners. The contemplated road did not pass through her lands, but the north line of the former coincided with the south line of the latter for a distance. At the May term, 1913, the board of commissioners entered judgment and final order in said proceeding, granting the petition and establishing the road as prayed, ordering that the road be recorded and that the auditor notify the proper township trustee as required by law, and that-

“the remonstrator David S. Ferguson shall receive as damages assessed by the reviewers herein the sum of $300 which said sum shall be paid by the petitioners herein, and that the said road shall not be opened or improved until said amount is paid or tendered as provided by law, all other costs to be paid out of the county treasury as provided by law, all of which is finally adjudged and decreed.”

At the time of the rendition of said judgment the $300 damages thereby confirmed to David S. Ferguson had not been paid or tendered to him, or deposited to his use in the county treasury, and he had not filed his consent in writing to the opening of the highway.

David S. Ferguson appealed from said judgment to the circuit court of Fountain county. Sarah E. Ferguson was a party to the proceeding in the commissioners' court, but filed no pleading therein. She did not appeal to the circuit court. On her petition, however, she was ordered made a party in that court, and granted permission to file a remonstrance for damages, but she filed no remonstrance. Neither the board of commissioners nor the county was a party to the proceeding in the circuit court.

November 4, 1913, the court entered a final order in said proceeding. The order purports to change the line of all that part of the road east of a point 80 rods west of the northwest corner of David S. Ferguson's land as follows: The south line of the road as changed angles northeast from said point to a point 30 feet north of said northwest corner; thence east to the terminus. Under the judgment David S. Ferguson's north line throughout becomes a part of the south line of the road, and Sarah E. Ferguson's south line from her west line east to the terminus of the road coincides with the south line of the latter. The more formal part of the order is as follows:

“It is therefore ordered, adjudged, and decreed by the court that the proposed highway along the route, changed as shown and described above, will be of public utility, and that the remonstrator Sarah E. Ferguson will be and is damaged thereby in the sum of $288, and that she have judgment therefor, and that upon the payment of said damages by the county treasurer of Fountain county, Ind., and the said county treasurer is hereby ordered to make such payment within 12 months from this date upon the proper order, and said money shall be paid from the first moneys which can be had for such purpose. Said proposed highway should then be opened to the width of 30 feet, as above found, and kept in repair all as provided by law, but no opening shall be made until said damages are paid and in no event before June 1, 1914, shall said proposed road be opened. It is further ordered, adjudged, and decreed by the court that the clerk of this court shall issue a certified copy of this order and judgment to the county auditor of said county who shall record the same and shall certify this order to the township trustee, who shall then proceed to open all of said proposed highway according to law, when said judgment shall be paid as aforesaid and not until then. It is further ordered, adjudged, and decreed, that the parties hereto pay of the costs of this proceeding each has made herein.”

Said judgment was entered by agreement of all the parties to said highway proceeding pending in the circuit court, including Sarah E. Ferguson. At the time of the rendition of said judgment or order, there were no funds in the county treasury with which to pay the damages awarded Sarah E. Ferguson, and no funds were available from any other source and no appropriation had been made by the county council to that end, and said damages had not been paid or tendered. Sarah E. Ferguson had not filed with the county auditor her consent in writing that the highway might be opened.

April 6, 1914, the clerk of the circuit court certified the order to the county auditor. April -, 1914, the county auditor in vacation entered the judgment upon the records of the board of commissioners. June 1, 1914, the county council made an appropriation in the sum of $288, for the purpose of paying the damages awarded to Sarah E. Ferguson. She, however, refused to file a claim before the board of commissioners based on the damages awarded, but July 6, 1914, no claim having been filed, the board of commissioners allowed to Sarah E. Ferguson the amount of damages so awarded. July 7, 1914, a warrant was issued, based on such allowance, and delivered to her by registered mail December 5, 1914. She refused to accept it and returned it December 30, 1914. Said damages have not been paid to or received by Sarah E. Ferguson or tendered to her except as above set out. The board of commissioners since the rendering of said judgment or order by the circuit court has taken no steps relating to the highway proceeding except to make said allowance.

September 5, 1914, appellant Weaver, as road supervisor, notified petitioners and the Fergusons and other parties to said order (under the provisions of section 7662, Burns 1914) to remove their fences along the line of the proposed highway that it might be opened up, which notice was repeated January 23, 1915. Petitioners and parties to said judgment, other than the Fergusons, thereupon in obedience to such notices did remove their fences, and built permanent and valuable fences along the boundary of such prospective highway where it crosses their respective lands. The road intersects the right of way of the Wabash Railroad Company. This company at the intersection opened its fences and built a crossing consisting of cattle guards and wing fences of a substantial nature, and at great expense and inconvenience, all of which was done with the knowledge of the Fergusons without objection from them, and in reliance that the Fergusons would abide by said judgment and without any notice from either of them that they would not do so.

Petitioners for said highway have been at all times and now are willing to perform said order, and have done so except as prevented by appellees. Appellants are claiming the right to open the highway, and are doing so, and will continue unless restrained by the court, and in so doing they are acting solely under authority of said order rendered by the circuit court.

The court stated conclusions of law to the following effect: First. That the judgment of the board of commissioners was without authority of law, and therefore void. Second. That the circuit court was without authority of law over the subject-matter in rendering the judgment of November 4, 1913. Third. That the circuit court did not have jurisdiction of the person in case of the county, and therefore was not authorized to render a judgment and order requiring it to pay damages. Fourth. That the judgment of the circuit court is void. Fifth. That appellants should be permanently enjoined as prayed.

[1] Sections 7655 and 7659, Burns 1914, have a bearing on such a highway proceeding as is involved here....