114 Ind. 66 | Ind. | 1887
This suit was commenced in the Newton Circuit Court, where a temporary injunction was granted. The venue was then changed to the White Circuit Court. That court sustained a demurrer to the complaint, dissolved the temporary injunction, and gave final judgment upon de-. murrer in favor of the appellees. This appeal, therefore, presents only the question of the sufficiency of the complaint.
The complaint charged that, on the 4th day of December, 1883, a petition was presented to the board of commissioners of the county of Newton, praying for the establishment of a highway in that county, described as follows: “ Commencing at the northwest corner of section eight (8) and the southwest corner of section five (5) in township thirty-one (31) north, range eight (8) west; thence running west on the section line dividing sections six (6) and seven (7) in township thirty-one (31) north, range eight (8) west, one mile to the range line dividing ranges eight and nine, viz., Lincoln and Lake townships; thence running west on the section line dividing sections one (1) and twelve (12) in township thirty-one (31) north, range nine (9) west, one hundred and seventy-six (176) rods,'to point near the Kankakee river marsh; thence running in a southwesterly direction about sixty-nine
The complaint also charged that the viewers so appointed, without authority other than as stated, and without the knowledge or consent of any of the land-owners to be affected thereby, proceeded to view, and did view, mark and stake out a route different in its location and description from that attempted to be described in the' petition and notice herein-above named, and made a report of their proceedings to the board of commissioners; that said report was, at the March term, 1884, of the board, entered of record with an order attached in these words: “ Which report is received and confirmed, and it is ordered by the board that said described road be established sixty feet wide on the line described above, thirty feet on each side of said line, and that the same b.e
The complaint further charged that John Adams, one of the plaintiffs, is the owner of several particularly described tracts of land in Newton county, on parts of which a portion of the line of road marked and staked out by the viewers is located, and that John Brady, the other plaintiff, is, in like manner, the.owner of other described tracts of land in the same county, on parts of which another portion of said line of road is also located; that the lands of the said Brady constituted a stock farm, on which he kept cattle, horses and mules of great value, and on which he had erected sheds, cattle-yards, stables and barns at great expense; that it would cause great and irreparable injury to the said Brady to be compelled either to remove or to abandon his said improvements on his farm; that Charles A. Harrington, as trustee of Lincoln township, Christian L. Brandt, as trustee of Lake township, Oliver Gleason, as supervisor of the first named township, and George Curtis, as supervisor of the township last named, were, upon the pretence of opening a highway on the line marked and staked out by the viewers, threatening to break the inclosures of the plaintiffs, and to destroy the said Brady’s sheds, cattle-yards, stables and barns, all of these persons being financially insolvent and unable to respond in damages for the injuries they were threatening to inflict; that the opening and establishment of the proposed highway would do irreparable damage to the lands of both of the plaintiffs. Wherefore it was charged that the pretended proceedings for the location and laying out of a highway were void and incapable of being carried into effect: Eirst. Because the attempted description of a line of road contained in the petition describes only a ml de sac, unconnected with any system of highways in Newton county. Second. Because that part of the description in question which reads as follows: “ to a point near the Kan
There are some variances between the description of the route embraced in the petition and the one reported as having been marked and staked out by the viewers as to the distances between certain points; also, as to the precise direction to be taken in some particulars, as well as to the use of certain descriptive words; but the view we take of this case renders it unnecessary that we shall particularly define or describe these variances. It is sufficient for our present .purpose to remark, that both descriptions were evidently intended to describe substantially the same line of road. The description in the petition is not in all respects as definite and specific as the rules of good pleading require in proceedings for the establishment of a highway, but we regard it as sufficiently certain and particular to resist a collateral attack of the class to which this belongs. Some of the words objected to as too indefinite might be rejected as surplusage, and enough would
The board of commissioners of Newton county had the power to decide, and was charged with the duty of deciding, whether the petition and notice complained of were sufficient to authorize further proceedings upon them, and, having impliedly decided that they were by the assumption of jurisdiction over the subject-matter and the taking of such further proceedings, its decision in that respect can not be attacked collaterally. Muncey v. Joest, 74 Ind. 409; Stoddard v. Johnson, 75 Ind. 20; Ricketts v. Spraker, 77 Ind. 371 (374); Town of Cicero v. Williamson, 91 Ind. 541 (542).
Where a party feels himself aggrieved by such a decision his remedy is by appeal. R. S. 1881, section 5027. An injunction in such acase will not lie unless the proceedings are totally void — that is, so defective as to be a mere nullity. Board, etc., v. Hall, 70 Ind. 469 (474); Faris v. Reynolds, 70 Ind. 359 (366); Mullikin v. City of Bloomington, 72 Ind. 161 (166); Hume v. Little Flat Rock Draining Ass’n, 72 Ind. 499 ; Porter v. Stout, 73 Ind. 3; Brocaw v. Board, etc., 73 Ind. 543 (545); Muncey v. Joest, supra ; Stoddard v. Johnson, supra; Hume v. Conduitt, 76 Ind. 598; Argo v. Barthand, 80 Ind. 63 (66); Million v. Board, etc., 89 Ind. 5; Heagy v. Black, 90 Ind. 534; Cauldwell v. Curry, 93 Ind. 363; Smith v. Clifford, 99 Ind. 113; Ely v. Board, etc., 112 Ind. 361.
Neither will an injunction be granted where the party applying has an adequate remedy by appeal. Houk v. Barthold, 73 Ind. 21; Caskey v. City of Greensburgh, 78 Ind. 233;
Where notice of the presentation of a petition for a highway has been given according to law, all parties interested must, at their peril, give attention to the proceedings which ensue, and if, in the ordinary course of events, any such party fails to receive actual notice of the petition, no cause is thereby afforded for the stay of proceedings by injunction. If irreparable damage is likely to be inflicted, that furnishes a cause for remonstrance against the establishment of the highway. R. S. 1881, sections 5009, 5010, 5019; Denny v. Bush, 95 Ind. 315.
A river, lake, or watercourse of any kind, may be used as a monument, when appropriate for that purpose, in the description of real estate, or in defining a boundary line, or line of road. Hays v. State, 8 Ind. 425; Willard Conveyancing, 405. On the same principle, a well defined marsh may be used for a similar purpose.
The word “ about,” where the context limits and restrains its meaning, does not materially impair the certainty of a description. Corey v. Swagger, 74 Ind. 211.
Technical accuracy is not necessary in the description of a proposed line of road. It is enough that the general description shall be s-uch that a surveyor can, with the assistance of the points definitely named, trace and designate the proposed route. Conaway v. Ascherman, 94 Ind. 187.
There is nothing shown authorizing the inference that the road in question will form a mere oul de sae, that is, a way open only at one end. But, as to that, it may be noted that the weight of modern authority is to the effect that a eul de sao may, in certain cases, be laid out and established as a highway. Sheaf v. People, 87 Ill. 189 (29 Am. R. 49); People v. Kingman, 24 N. Y. 559.
Courts will take judicial notice of the county in which a public highway is located, where the lands, to be affected by
The judgment is affirmed, with costs.