Wells v. Rhodes

• Court: Indiana Supreme Court
• Writing for the Court: Mitchell
• Citation: Wells v. Rhodes , 16 N. E. 830, 114 Ind. 467 (Ind. 1888)
• Decision Date: 09 May 1888
• Parties: Wells et al. v. Rhodes et al.

114 Ind. 467

16 N.E. 830

Wells et al.

v.Rhodes et al.

Supreme Court of Indiana.

May 9, 1888.

Appeal from circuit court, Orange county; E. D. Pearson, Judge.

Wells, Andrews, and Scarlett, plaintiffs, filed a remonstrance against Elvet B. Rhodes et al., to prevent the establishment of a highway, and for damages. Judgment awarding damages to Wells and Andrews, but otherwise dismissing the remonstrance. Plaintiffs appeal.Robert Collins and Shirts & Shirts, for appellants; Stafford & Boyd, for appellees.

Mitchell, C. J.

This was a proceeding for the location of a highway, commenced before the board of commissioners of Orange county, and taken thence by appeal to the Orange circuit court. The appellants, Wells, Andrews, and Scarlett, appeared before the board, and, without making any objection to the petition or notice, remonstrated against the proceedings, on the ground that the proposed road, if established, would pass over and greatly injure certain real estate owned by them, and on the further ground that the proposed highway would not be “of sufficient public utility.” On motion, the remonstrance was rejected by the commissioners, and, upon the favorable report of viewers regularly appointed, an order was made establishing the highway. Upon appeal to the circuit court the remonstrance was refiled, and, on motion, so much of it as challenged the public utility of the proposed highway was again rejected. The cause was tried upon the issue presented by the remonstrance, for damages, with the result that there was a finding in favor of the public utility of the proposed highway, and an award of $100 damages to Wells and Andrews, two of the remonstrants.

It is well settled that, when an appeal is taken from the order or decision of a board of commissioners in highway or other like proceedings, only such issues can be tried in the circuit court as were made before the board, except so far as the issues presented in the first instance may be varied by proper amendments under the rules of law. Green v. Elliott, 86 Ind. 53;Forsythe v. Kreuter, 100 Ind. 27;Breitweiser v. Fuhrman, 88 Ind. 29;McKee v. Gould, 108 Ind. 107, 8 N. E. Rep. 724; Ice Co. v. Lay, 103 Ind. 48, 2 N. E. Rep. 222; Hardy v. McKinney, 107 Ind. 364, 8 N. E. Rep. 232. Where, however, the petition is totally insufficient, so as to form no basis for the proceedings, or foundation for the action of the board, an objection thereto would be fatal at any stage. Breitweiser v. Fuhrman, supra, and cases cited. Mere uncertainties in the petition, such as do not render the proceedings void, and which might have been remedied at the proper time, by a motion to make more specific, will not afford sufficient ground for a motion to arrest the judgment or dismiss the petition. Dillman v. Crooks, 91 Ind. 158;Watson v. Crowsore, 93 Ind. 220. A party who appeared before the board, and who failed to make objection there, will be deemed to have waived all defects or irregularities in the proceedings, except such as render them wholly invalid. In the present case the remonstrants moved to dismiss the proceedings in the circuit court. They also moved in arrest of judgment. Both motions present substantially the same question. The grounds for the motion in arrest were, in effect, that the description of the proposed highway, as contained in the petition, in respect to the commencement, course, and termination thereof, was too vague and uncertain, and that the petition failed to disclose the name of the owner of each several and separate tract of land over which the highway was to be laid. Concerning the ground last stated, it is sufficient to say, no such particularity as setting out a description of each separate tract of land, with the name of the owner, is required; and if it were, while the failure to comply with such a requirement might be ground for a motion to make the petition more specific, it would afford no sufficient cause for the arrest of the judgment. Dillman v. Crooks, supra. The chief objection to the description of the highway relates to the point of commencement. This is described as follows: “Beginning at the sign-board situate in the north line of the N. E. quarter of section 17, in...