41 Ind. App. 217 | Ind. Ct. App. | 1908
Suit by appellant to enjoin appellee from fencing up an alleged roadway. A demurrer to the complaint was overruled, and an answer in general denial filed. The case was tried by the court, a finding made for appellee, and judgment rendered against the appellant for costs. The facts established by the evidence are substantially as shown by the map and the following paragraph:
Appellant and appellee are adjoining landowners in Grant county. A public road, known as the “Muncie pike” (A-B), runs diagonally through appellee’s land, to which appellant has no lawful means of ingress or egress other than the roadway which he now seeks to prevent being closed and fenced up (C-D). Many years prior to the institution of this suit a public highway ran from the Muncie pike along the north line of plaintiff’s farm and thence to the southwest (G-D-F-E). The old road was several years ago legally vacated: Since that time appellant has used both
For reversal the single assignment of error is that the court erred in overruling appellant’s motion for a new trial. This motion is predicated on the grounds that the decision of the court was not sustained by sufficient evidence, and was contrary to law.
The facts just stated show a right to a public roadway.
The court erred in overruling appellant’s motion for a new trial. The judgment is reversed, and the cause remanded, with instructions to sustain appellant’s motion for a new trial, and for further consistent proceedings.