155 Ind. 417 | Ind. | 1900
— On September 8, 1897, under §§6742-6753 Burns 1894, §§5015-5026 R. S. 1881 and Horner 1897, appellees filed a petition with the board of commissioners of Hamilton county for the location of a highway on the half-section line running north and south through a certain section. The north thirty rods of the proposed line forms a part of the east boundary of the eity of Hobles
In 1895 (Acts 1895, p. 14), the legislature amended
The proposed highway is an entirety and was established as such. The judgment appealed from is an entirety and must be treated as such. The highway established must be of the general character of the highway petitioned for. “The order for the location of the highway must be for such a way as the one described in the petition.” Lowe v. Brannan, 105 Ind. 247, 249, citing People v. Township Board, 12 Mich. 434; Brannan v. Mechlenburg, 49 Cal. 672; Damrell v. Board, 40 Cal. 154; Robinson v. Logan, 31 Ohio St. 466. “The road was an entirety. As such it was petitioned for, and as such the court attempted to establish it. No one contemplated that a part at each end was to be established, while an essential lint necessary to connect those parts was wanting. Without attempting to demonstrate that a result could not properly be held to have been reached which was not contemplated by any one, it is sufficient to say that, in this case, the court, as it appears to us, did not acquire jurisdiction.” Barnes v. Fox, 61 Iowa 18, 15 N. W. 581. “The proceeding for laying out the whole road must be regarded as an entirety. Among the purposes for which the road was attempted to be established, as may be supposed, was the affording of a way for travel over the whole line, from the place of beginning to the road which was referred to as the southern terminus. We cannot assume that a highway over a part of the line would be of any public or even private utility, or that the supervisors would have laid out any road if they had not supposed that they were effectually laying out the whole.” Sonnek v. Town of Minnesota Lake, 50 Minn. 558, 52 N. W. 961. “These powers [of cities over the subject of highways within the corporate limits] are exclusive; and the doctrine is that statutes conferring in general terms au
Appellants are not residents of Eoblesville and their lands lie outside the city. But part of their land is taken by the proposed road described in the petition. They were entitled to compensation if their damages exceeded their benefits. The reviewers and the jury found that their damages would not exceed the benefits resulting from the establishment of the road described in the petition. The judgment appealed from, therefore, determines that appellants, by the surrender of their land for the road, paid for an interest in the road as an entirety. Since a part of the consideration fails, the judgment, which is an entirety, can not be upheld.
Appellees cite the cases of Sparling v. Dwenger, 60 Ind. 12, and Chicago, etc., R. Co. v. Sutton, 130 Ind. 405. In each of these cases a landowner sought to enjoin a road supervisor from entering upon plaintiff’s land to open a road under a judgment of the county commissioners establishing the road. The road as established was partly in the country and partly in the city. Plaintiff’s land was wholly in the country and not contiguous- to- the city. Plaintiff was legally notified of the pendency of the proceeding, and failed to appear and object or ask for damages. It was
Judgment reversed, with directions to sustain the motion to dismiss.