138 Ind. 267 | Ind. | 1894
The appellant sued the appellees, a township trustee and a district road supervisor, to enjoin a threatened removal of farm fences.
The complaint was in two paragraphs, each relating to different fences, and the finding and decree was in the appellant’s favor upon the second paragraph, and against him upon the first.
Of the first paragraph the appellant states' that “Its material allegations are that appellant is, and has been
To this paragraph of complaint the appellees answered,' by way of amended second paragraph of answer, ad
The court overruled appellant’s demurrer to this answer, there was a reply in general denial, a submission, trial, and finding for the appellees. All costs were adjudged against the appellant, “except costs of filing complaint, issue of summons, service and'return thereof, which costs are taxed against the” appellees.
The appellant’s objection to the answer is that it was not responsive to the complaint, and the argument is that the complaint alleges a.location and marking, by the viewers, of a highway upon the line of the appellant’s fence, as the section line, and that the highway so located and marked had been opened by the removal of the fence. This we understand to be the true theory of the complaint, but we are unable to agree with the counsel in the contention that the answer should confess the
The answer in question, in effect, confesses the conduct complained of, and pleads affirmatively in avoidance the legal proceedings by which the highway was viewed, located and marked upon the line of the section, where, by the conduct confessed, the appellees would have opened it by the removal of the appellant’s fence. Conceding, but not deciding, that the locating and marking of the highway were issues upon which oral proof was admissible to contradict the report of the-viewers, the answer was broad enough to meet such issues, and if these were improper issues, the answer was sufficient, since it pleaded the location and marking by the viewers upon the section line as reported to the board. We have no doubt of the sufficiency of the answer.
There was evidence supporting the finding and decree of the court, and we will not weigh all of the evidence to ascertain whether the decree was supported by the preponderance of the evidence. Nor do we deem it a proper subject of inquiry as to whether the appellant’s fence, by adverse possession, represented the section line as the division line between adjoining proprietors. If, as found by the court, the highway was located upon the section line, it matters not upon whose land it was located. The division line, as to the public, was not the section line, and public interests required that the highway should not vary its course to correspond with partition lines, however irregular.
The only remaining question before us is upon the judgment of the lower court as to costs. The motion was to so modify the judgment as to tax all costs against the appellees. It has been seen that the appellant sue
The issue upon which the appellant succeeded below was conceded by the appellees, and evidence was not introduced upon it. No question is made as to the distribution of the costs upon the issues found in favor of the parties respectively, and the motion so made by the appellant being clearly improper, it was not'error to overrule it.
Finding no error in the record, the judgment of the circuit court is affirmed.