Strong v. Makeever

Zollars, J.

This case was tried in the Newton Circuit Court on a change of venue from Jasper county^ where it originated. Section 5035, R. S. 1881, is as follows: “All public highways which have been or may hereafter be used as such for twenty years or more shall be deemed public highways; and the board of county commissioners shall have power to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as have been used for twenty years but not recorded, to be ascertained, described, and entered of record.”

Invoking the exercise of the authority conferred by this statute, appellees filed their petition with the board of commissioners of Jasper county, in September, 1882, stating therein that a certain highway, five and one-half miles in length, partly in Marion and partly in Newton townships, Jasper county, had been laid out forty feet wide, one-half on either side of the line dividing certain named sections of land; that for twenty years this highway, thus laid out, has been used and travelled as such, and that it has not been recorded as a highway. It is further stated, that some of the adjoining land-owners, during that year, had encroached upon the highway by putting their fences thereon. Against this, the petitioners enter their protest, and ask that the board of commissioners ascertain what portions of the highway have not been properly recorded, and ascertain and enter said highway of record, so that the existence thereof may be preserved, and the proper road superintendent be enabled to take charge of and keep in repair said highway, etc.

William D. Saylor, superintendent of roads in Newton township, appeared in the commissioners’ court and objected to the making of the order as asked by the petitioners, so far as it might affect the highway in that township. In his written objections, he stated that the highway, in that township, had not been laid out on the section line as stated in appellees’ petition; that there was a public highway in that township near the said section line, and parallel or nearly parallel therewith, which had been used continuously for more than twenty years as a public highway, the boundaries of which were easily ascertainable by the fences which had been maintained on either side from the time the road was opened; that large sums of public money had been expended upon the- highway in the way of clearing, grades, fills, ditches, bridges, etc., and that the way could not be changed without materially affecting public and private rights, etc. There being no issue as to that portion of the highway in the other township, an order was made that it be recorded, etc. As to the portion in Newton township, the answer and remonstrance of the superintendent tendered an issue which was tried by the board and decided against him, and an order made that the récord should be made as asked by the petitioners, and that the superintendent of roads should keep the highway open for travel, etc. From this order the superintendent appealed to the circuit court. ■ His office, in the meantime, having been abolished, appellant, as the township trustee, was substituted. A like judgment was rendered in the Newton Circuit Court, and from this appellant prosecutes this appeal.

For a reversal of the judgment, appellant relies upon the alleged error of the court below in overruling his motion for a new trial. For the purpose of showing that the west mile of the highway in Newton township had been established upon the section line, as averred in their petition, appellees read in evidence, over appellant’s objections and exceptions, a transcript of proceedings by the board of trustees of Newton township, in 1856. That was a proceeding instituted under 1 R. S. 1852, p. 313, et seq., to have a highway changed and relocated. It nowhere appears in that transcript how wide the highway was, which it was Sought to vacate, and what is more important and fatal, it nowhere appears in the transcript how wide the highway was which the trustees attempted to establish. For this'reason, the final order of the trustees locating the highway was absolutely void, and the transcript was not competent evidence. White v. Conover, 5 Blackf. 462; Carlton v. State, 8 Blackf. 208; Barnard v. Haworth, 9 Ind. 103; DeLong v. Schimmel, 58 Ind. 64; State v. Schultz, 57 Ind. 19; Erwin v. Fulk, 94 Ind. 235.

The admission of the transcript in evidence was such error as requires a reversal of the judgment, but as some other questions are presented by the record, which would necessarily arise again upon a re-trial, we proceed to examine and decide them.

As will be seen from the statement of the case, the controversy is about the two miles of the road in Newton township, and more especially about the west mile. Just when the east mile of this portion of :the road was opened for travel is not shown by the record, but it was prior to 1857. In 1857, the west mile was opened for travel, and thus there was a continuous line of road, forty feet wide, from the east line of the township, two miles west, or nearly west. At the east end, or township line, the center of the road is on the section line as that line was fixed by a survey in 1879. At the west end of the first mile from the east, the center of the road is about two feet north of the section line. At the west end of the two miles, the entire highway of forty feet is north of the section line. In order to make the west mile available, it was necessary to clear away timber and underbrush, grade down a hill or elevation, make an embankment through a morass, cut ditches along the side of the road for a part of the way, and to construct bridges over the ditches, all óf which was done soon after the road was opened. This portion of the road was opened with the knowledge and consent of the adjacent land-owners, all of whom still own the land, except appellee Daniel S. Makeever, who has since bought one of the adjoining tracts of land. These landowners directed that the road should be so located that the center of it should correspond with the east and west fence dividing their lands, which fence they supposed stood upon the section line. They supposed too, that the road was being thus located in accordance with the order of the board of township trustees, for which order they had petitioned. Upon their petition also, another highway was abandoned in order that this might be opened. When the road was opened, they moved their partition fence and built fences on either side of the road, and twenty feet from the center of it. From that time until this proceeding was commenced,'more than twenty-five years, with a slight interruption which we shall mention, these fences have been maintained, and this highway, thus opened and constructed, has been open for travel, and has been worked and kept in repair by the public authorities. To change the highway so as to put the center of it upon the section line as that line was fixed by the survey in 1879, and as the order of the court below would require, would necessitate another grade of the hill or elevation, the •construction of a new fill through the morass, which, for a part of the way, would fall upon the line of one of the side •ditches, the removal of fruit and other trees, and the destruction of rows of hedge.

In 1868, an unofficial survey showed that the section line at the west end was south of the road. In 1874, Benjamin, who owned land adjacent to the road for a quarter of a mile on the south, moved his fence south so as to throw out twenty feet of ground. The supervisor, on one occasion, did some plowing upon the land thus thrown out, but, upon being informed by the township trustee that it was not a part of the highway, abandoned it. The old road, however, was in no way abandoned. In 1882, Benjamin removed his fence north, and placed it on the line where it had stood since the road was opened. At some time subsequent to the survey of 1868, appellee Daniel S. Makeever objected to any work being done on the road north of a line twenty feet north of the section line as fixed by that survey. 'Whether his objection was first made in 1868,1870 or in 1874 is not definitely fixed by the evidence, although the decided preponderance is in favor of 1874. For the purposes of this case we give to appellees the benefit of the doubt, and regard the objection as having been first made in 1868. Nothing more positive or aggressive was done by Makeever until the spring of 1882, when he moved his fence south and placed it on a line about twenty feet north of the section line as fixed by the survey of 1868. Whether or not the fence interfered with the travelled way, is not shown by the evidence. Within a week or two he removed the fence and placed it on the line where it had been from the time the road was opened in 1857. Thus it will be seen that the road, as located and opened in 1857, was continuously used as a highway until the spring of 1882, at least twenty-five years, without any interruption other than the verbal objections by Daniel S. Makeever. If these objections were made as charged, the most that can be said for the'm is, that the holding by the public was adverse during the time they were being made, because during all that time the public authorities were claiming the right, and the public were using as a highway the road as opened in 1857. We are unable to perceive how this adverse holding can be of avail to appellees. It rather militates against them- and the claims they now make.

It is made very plain by the evidence, that the road, as opened in 1857, had been used, with the knowledge of appellees, as a public highway for more than twenty-five years before the proceeding was commenced. By the explicit and positive terms of the statute, that use made the road a public highway. Under this statute, it is the twenty years’ use that makes the road a public highway, and it is immaterial whether the use is with the consent, or over the objections, of the adjoining land-owners. Such is clearly the correct construction of the statute and the previous rulings by this court. Epler v. Niman, 5 Ind. 459; Hays v. State, 8 Ind. 425; State v. Hill, 10 Ind. 219; Lemaster v. State, 10 Ind. 391; Hart v. Trustees, etc., 15 Ind. 226; Debolt v. Carter, 31 Ind. 355; Ross v. Thompson, 78 Ind. 90; Kyle v. Board, etc., 94 Ind. 115.

If Makeever wished to make the question, that by mistake- or otherwise the highway as used was not upon the proper line, he should have pursued the proper legal remedy for the correction of the mistake before the expiration of the twenty years’ use. Merely objecting, as he claims to have done, is of no avail after the expiration of that time. With the expiration of the twenty years’ use, as in this case, the statute-intervenes and declares the road to be a,public highway regardless of its origin or the mere objections by land-owners. The statute does not affect a remedy merely, hut establishes a right. If there were no such statute, the case, as to the existence of the highway, would be a different one. It might then be a case falling within the statute limiting actions for the recovery of real estate to twenty years, and to be governed by the rules applicable to that statute. In such a case,, the alleged mistake in the location of the road and the objections by Makeever might be of importance. In such a case, the case of State v. Welpton, 34 Iowa, 144, and the other like cases cited by appellees, would be authority. But they are not authority here,' and the alleged mistake and the objections are of no importance, because we have not that kind of a case. And if the use had been for less than twenty years,we should have a different case as to the existence of the highway. In such a case, the legal existence of the highway might be dependent, upon a dedication by the landowners, in the consideration of which it would be important to consider the alleged mistake In the location of the road, the objections by land-owners, and whatever else might tend to show or disprove an intention to dedicate the way to the uses of a public highway, as also, whatever might tend to establish an estoppel as against the adjoining land-owners. But that, again, is not the case before us. Whether the adjoining land-owners intended to dedicate to the purposes of a highway the strip of land used, whether there was a mistake in the location of the highway, and whether the highway was used for such a length of time that public accommodation and private rights might be materially affected by an interruption of the enjoyment, are questions which need not be considered, because, regardless of these considerations,, the road has been established as a highway by the twenty years5 use. It follows that the judgment of the court below is erroneous and must be reversed, because it does not order .•a record of the highway as used, but in effect establishes the highway upon a line different from that established by the use.

The above section of the statute, upon which this proceeding is based, does not provide for the changing of highways, nor does it provide for the correction of mistakes in the location of highways. By its terms, it is limited to roads used .as highways. Before the board of commissioners can make any order for entering of record, it must be shown that the road is used as a highway.

If a highway in use has been laid out, but not sufficiently ■described, or a highway has been used for twenty years, the board may cause the highway to be ascertained, described and entered of record. In either case, the description and record must be of the highway as used. This is the plain language of the statute, and a necessity from the nature of the case. The proceeding, as authorized by the statute, is to ascertain, describe and enter of record, highways which have not been described at all, or not sufficiently described and ■entered of record. In such case, there is nothing to which resort can be had except tKe highway as used. That is the highway to be described and entered of record. Appellees’ petition asserts that the highway had been laid out and opened, forty feet wide, one-half on either side of the section line, .and as thus opened had been used for twenty years. There is no legal proof that it was thus laid out, because the pretended record of the proceedings before the board of township trustees does not make it, as we have already seen. On the other hand, the uncontradicted testimony is, that the highway, as used, is not one-half on either side of the section line. The evidence, not only. does not support appellees’ case, but overthrows it. Over this uncontradicted evidence the court below ordered the record, not of the highway as used for more than twenty years, but a highway upon a different line. This the court had no authority to do.

Other questions are discussed by counsel, but as they may not arise upon another trial, or, if they should, they will most likely be presented in a different shape, we need not extend this opinion to notice them. Upon the cross errors, it is sufficient to say, that in a proceeding of this character, where the existence of a highway is in jeopardy, the township trustee may appear and defend in his official capacity.

Filed June 10, 1885.

The judgment is reversed with costs, and the cause remanded with instructions to the court below to sustain appellants’ motion for a new trial.