19 Ind. 259 | Ind. | 1862
William II. Coats, and twenty-three others, presented a petition to the board of commissioners of Putnam county, for “a change of the highway in Greeneastle township, of said county, leading from Mount Meridian to Greeneastle, so that said highway shall run as follows, viz.: Beginning where the said highway crosses the line dividing sections twenty-three and twenty-six, in township, etc., on the lands of, etc., and running thence west, etc., on, etc., to, etc.” Proof of notice was made.
Viewers were appointed, were qualified, discharged the duty imposed upon them, and reported that the change would be of public utility. Their report was duly filed.
We think the petition for the highway was sufficiently certain. Hays v. The State, 8 Ind. 425. We do not think uncertainty in the order describing the change to be made, was ground for dismissal of the proceedings. A motion might have been made before the commissioners for greater certainty in the order, and, it not being done there, the defect might be remedied in the final order of the Common Pleas.
The remaining question is, On whom was the burden of proof on the trial in the Common Pleas? The statute on the subject of laying out and changing highways, is found at p. 359, 1 G-. & H. ed. R. S., and provides that the county commissioners may lay out or change a highway, in the county, where notice, etc., has been given, on a petition, etc., and a report in favor of the change, if no objection is made; Id. pp. 362, 363; and without any consideration of the question of damages. These are not given unasked, and the
We take it, that no new ground in favor of, or against, the proposed highway, can, as matter of right, be there filed. The petition must be filed before the commissioners, and so must the report of the viewers; and, on appeal, the cause must be tried on the papers on which it is tried in the Commissioner’s Court; and no new viewers or reviewers can be applied for or appointed, unless, at all events, by mutual consent. Moore v. Smock, 6 Ind. 392. Kemp v. Smith, 7 Id. 471. And the necessary papers of record in the cause, such as the petition, reports of viewers, remonstrances, etc., which must be before the Appellate Court, to enable it to act on tbe several different parts of the cause which they constitute, are operative in the Appellate Court to make a prima facie case, at least, for the party in whose favor they are. This is necessarily so in the reason of the thing, and is declared to be so by authority. In Malone v. Hardesty, it is held, that the petitioners must prove, on the trial on appeal, to make a prima facie case, just what they must prove before the commissioners. 1 Ind. 79. What must they prove before the commissioners ? Not the truth of the report of the viewers; but that the notices, etc., required by statute, had been given, etc. In the Common Pleas, then, in case of a cause appealed, where there had been no objections raised below, these questions would be for trial by a jury, and the burden of proof would be on the petitioners,
But suppose, now, an appeal in a cause where the objectors had appeared below, and had objected, under sec. 23, p. 364, 1 G-. & H., on the question of utility, or remonstrated under sec. 19, p. 363, on the ground of damages, or upon both grounds, and had had reviewers appointed, who had filed reports, which became, as they necessarily would, a part of the original papers to go to the Appellate Court; in such a ease the notices would be admitted or waived, and proof of them would not have to be made on a trial by jury in the Common Pleas. Milhollin v. Thomas, 7 Ind. 165. The question on the sufficiency of the several papers would be for the Court, and, if sufficient, they would be prima facie true, that is the reports; and we think the petitions, remonstrances, and reports, which, as we have seen, would constitute the papers on which the cause would be tried, need not be given in evidence. They would be before the Court, like the pleadings in a cause, would be taken notice of by the Court, and, necessarily, read or stated to the jury, in placing the cause before them.
Applying, now, these principles to the case at bar: here was a petition, and a legally sufficient report upon it, in favor of a change in a highway. Here was a remonstrance, and a report of reviewers upon it, in favor of the change, and that it would occasion no damages. These papers made a prima facie case, certainly, in the Common Pleas, in favor of the change without damages, and, it seems to us, threw the burden of proof upon the appellants. See The Lake Erie, etc., Co. v. Heath, 9 Ind. 558. Taking land for a highway, it may be here observed, is taking property for public use, and the damages must be claimed in the way prescribed by statute, if it is a reasonable one. That it is has been decided. Dronberger v. Reed, 11 Ind. 420. That method is to claim them below, and have them assessed by viewers or
The judgment below is affirmed, with costs. Williamson and Daggy, for the appellants.