181 Ind. 36 | Ind. | 1913
This proceeding to establish a new public highway was instituted by appellants before the board of commissioners of Vigo County in 1899. From an order of the board dismissing the petition, an appeal was taken to the superior court where the cause remained pending eleven years, receiving spasmodic and occasional attention from
In this case, the board of commissioners carried the proceeding neither to a conclusion that the highway should be established, nor that it should not be because not of public utility. It went back to the question of jurisdiction of the subject-matter and ended the proceeding on the ground that, the bond for costs not having been filed with the petition, jurisdiction of the proceeding had not been acquired. And this was the question involved in the appeal to the superior court. That question was tried and determined in appellants’ favor. That it was determined correctly has been settled by the decision of this court in the case of McKaig v. Jordan (1909), 172 Ind. 84, 87 N. E. 974, where it was held that, under circumstances like those here involved, the board of commissioners has jurisdiction without the filing of the cost bond, but upon objection or plea showing a former petition and a report of viewers against the public utility of the highway, the board should require the filing of a proper cost bond. The statute relating to appeals from boards of commissioners which was in force at the time this appeal was taken, in defining the authority of the court to which the appeal is taken provides: “Such court may make a final determination of the proceeding thus appealed, and cause the same to be executed, or may send the same down to such board, with an order how to proceed, and may require such board to comply with the final determination made by such court in the premises.” §6027 Burns 1908, §5778 R. S. 1881. It has been held by this court in cases similar to the one before us, that this statute vests the court to which the appeal has been taken with the discretion to render a judgment such as that rendered by the superior court in this case. Bryan v. Moore (1881), 81 Ind. 9; Sharp
The judgment, which it rendered, being within the discretion of the superior court, it did not err in refusing to render a different one on appellants’ motions. Judgment affirmed.
Note. — Reported in 102 N. E. 853. See, also, under (1) 37 Cyc. 140; (2) 37 Cyc. 70; (4) 37 Cyc. 136, 140; (7) 37 Cyc. 148. As to establishment of highway by prescription, see 57 Am. St. 744.