15 Ind. 226 | Ind. | 1860
The appellees, who were the plaintiffs, instituted this suit before a justice of the peace, against Hart, alleging in their complaint, that the defendant did, unnecessarily, and to the hindrance of passengers, obstruct a certain highway, (describing it,) and still continues such obstruction, wherefore, &c. Before the justice, the plaintiffs obtained judgment, from which the defendant appealed. In the Common Pleas there was a trial of the cause, which resulted in a similar judgment.
The evidence is not all in the record; but the Court, to whom the cause was submitted for trial,at the instance of the defendant, found specially as follows: “ The road was seventy
At the proper time, the defendant moved for a judgment in his favor, on the alleged ground, that it appeared from the special findings of the Court, that the road in question was not a public highway; but his motion was overruled, and thereupon he moved for a new trial, which motion was also overruled, and he excepted. These rulings are assigned for error; and the only question to settle is, was this road a public highway, within the statute on which the suit is based ? That statute enacts that, “Every person who shall unnecessarily, and to the hindrance of passengers, obstruct any highway, shall forfeit the sum of five dollars, to be recovered before a justice of the peace, in the name of the township trustees, by the supervisor of the district,” &c. And, further, it provides that, “ All public highways which have been, or may hereafter be, used as such, for twenty years, or more, shall be deemed public highways.” 1 R. S., § 45, p. 315; § 25, p. 467. It is insisted that the road, in this case, being of no established width, is not within the control of the supervisor, and is not, therefore, a statutory highway. This position is not strictly correct. We have decided that, “ A road which has been used by the public, continuously, for twenty years, becomes a pxrblic highway, and is of no established width by law; but its width, as used at the end of twenty years, can not, legally, be intruded on.” Epler v. Niman, 5 Ind. 459. This decision seems to be precisely in point, because, here, the public had used the road without interruption for twenty-one years, hence, it was a public highway under the statute, and its width at the end of twenty years was its established width. See, also, The State v. Hill,
The judgment is affirmed, with 5 per cent, damages and costs.