Wolfe v. The Town of Sullivan
| Decision Date | 03 January 1893 |
| Docket Number | 16,052 |
| Citation | 32 N.E. 1017,133 Ind. 331 |
| Parties | Wolfe et al. v. The Town of Sullivan |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Judgment affirmed.
W. C Hultz, for appellants.
G. W Buff and J. S. Bays, for appellee.
This was an action by the appellee, in the Sullivan Circuit Court, against the appellants to abate an alleged nuisance. The complaint, among other things, alleges that the town of Sullivan had been a regularly laid out and platted town for more than forty-five years prior to the date of the commencement of this suit; that of the streets designated on the original plat of the town was one called Broad street, running north and south, and extending from limit to limit of the town, and that it had been used by the public ever since the town was laid out and platted as such; that such street was dedicated to the public use by the original plat of the town, which was duly recorded; that the appellant, Mary O. Wolfe, who is the wife of her co-appellant, John W. Wolfe, is the owner in fee of lot number five, in Broadie's addition to the town, which lot is situate at the southeast corner of Washington and Broad streets; that it is one hundred and forty-two feet in length, and runs parallel with Broad street; that in 1887 the appellants unlawfully erected a fence upon and into Broad street, the whole length of said lot, and then and there and thereby appropriated to their own private use a portion of Broad street, ten feet in width and one hundred and forty-two feet in length, and have thereby obstructed said street, and have excluded the public therefrom, which fence they have ever since maintained. Prayer for a judgment abating the nuisance.
The appellants answered, second, the twenty year statute of limitations; third, in substance, that the appellant, Mary O. Wolfe, became the owner of the lot described in the complaint in the year 1883; that at the time she became such owner, the fence along the west side thereof was the line of the present fence, and where it had been for the period of forty years; that no part of the land on the inside of the fence had ever been used by the public as a highway; that such fence was rebuilt by the appellants, in the year 1887, on the line where it had been maintained for the period of forty years; that it was rebuilt in good faith the appellants believing that they were the owners in fee of the land on the inside thereof, and that the public had no interest therein; that it was rebuilt at an expense of forty dollars, and a brick sidewalk was afterward constructed along the west side of such fence, at an expense of fifty dollars, with the full knowledge of the appellee and its officers, and without any objection or notice therefrom; that shade trees have been set out along the west side of said lot, with reference to the fence as it now stands, which are reasonably worth, to the appellants, one hundred dollars; that to remove the fence, as prayed by the appellee, would compel the appellants to tear up and remove their sidewalk and destroy their shade trees to their damage three hundred and fifty dollars; that Broad street extends south from Harris street, a distance of two hundred and fifty yards; that under the same circumstances and belief the property owners, to wit, some twenty persons, along the west side of the street, have built permanent improvements, consisting of fences, shops, stables, barns and out-buildings, encroaching upon said street, as claimed by the appellee; that to remove said buildings would damage the owners thereof two thousand dollars; that five persons along the east side of the street have made permanent improvements with reference to and near the line upon which appellant's fence now stands, among whom are two of the present members of the board of trustees of the town of Sullivan; that all the above-mentioned improvements were made with the full knowledge of the appellee and its officers without any objection whatever; that the...
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