7 Ind. 38 | Ind. | 1855
Case by Thomas against Haynes and Dickson, for a nuisance. The declaration contains two counts. The first alleges that the plaintiff is the owner of lots two, three and four, in the town of Williamsport; that on the 11th of December, 1828, the proprietor, by a plat of the town, dedicated to the public all the ground between said lots and the Wabash river, as a public street, and sold said lots with reference to said dedication; that said ground had been used as a street from that time until the 1st of April, 1851, when the defendants obstructed the street by excavating the earth and erecting walls, by which the plaintiff was obstructed in the free use of the street for passage from his lots to the river. The second count is like the first, except that it states the lots to be in the occupancy of the plaintiff’s tenants, laying the damages to the reversion.
Plea, not guilty.
The cause was removed from the Warren to the Fountain Circuit Court, by change of venue, where there was a jury trial. Verdict for the plaintiff for 92 dollars. Motion for a new trial overruled, and judgment.
The appellants complain that after the evidence was closed, and the Court had instructed the jury, they were permitted to separate until the next morning. In civil suits, this may be done in the discretion of the Court. 2 R. S. 1852, p. 112, sec. 329. There is nothing to show that the discretion was abused; nor was the proceeding excepted to at the time.
The plaintiff, to prove title to the lots in question, offered in evidence a deed from Harrison, the proprietor of the town, and his wife, to one Canby, from whom the plaintiff derived title. A witness testified that he was acquainted
The plaintiff gave in evidence a patent from the government to Harrison, and showed title to the lots described in the declaration; also a recorded plat of the town, dated in 1828, made by Harrison, which showed that, opposite to said lots, Water street extended from the lots to the river; and proved that in 1851 the defendants excavated the earth, erected foundation walls, and built a warehouse on said ground. This was all his proof.
The defendant then offered to prove that the erection of the warehouse was a benefit to the plaintiff’s property, and had increased its value from 1,000 to 1,500 dollars; which testimony was, on the plaintiff’s objection, excluded by the Court, and the defendant excepted. The appellee having offered to remit all but nominal damages in this Court, it will be unnecessary to consider whether the evidence was proper to reduce the damages. If the action is well conceived, it was clearly no bar. The erection of buildings, however valuable, after an unlawful entry, upon the lands of another, would be no answer to an action of trespass for breaking the close.
The defendants then proved that the warehouse was erected at a distance of sixty feet from the plaintiff’s lots. They gave in evidence a quitclaim deed for the ground
“An act to vacate part of Water street in Williamsport, in the county of Warren, approved Jarmary 25,1851.
“Sec. 1. Be it enacted,” &c., “that so much of Water street as lies between lots numbered one, two, three and four, and the Wabash river, in the town of Williamsport, in the county of Warren, and state of Indiana, be and the same is hereby vacated, except fifty feet on the western side of said street, and adjoining the said lots.
“Sec. 2. This act shall take effect and be in force, from and after its passage.”
This was all the defendants’ evidence.
Upon these facts, the Court instructed the jury, that the plaintiff and defendants both claimed under Harrison, and that when Harrison laid out part of the land he bought of the United States, into the town of Williamsport, and had his plat recorded in pursuance of law, it operated as a warranty deed to the public of all streets and alleys in said town of Williamsport, for the purposes designated, one street of which was Water street, which extended from lots two, three and four, in Williamsport, to the Wabash river; and that no act or law of the legislature, vacating said Water street, or any part thereof, without the consent of the plaintiff, could authorize Harrison, or his grantees, who are the defendants, to resume the actual possession thereof and convert it to their private use; and that the said Water street, and every part thereof, should remain open for the use of the plaintiff, as a pass-way; and that the defendants, by building their warehouse upon the lands of Water street, which had been vacated by the legislature, damnified the plaintiff to a nominal extent; and that the jury were therefore bound to find for the plaintiff, and that the said finding might be any sum from one cent to the amount claimed in the plaintiff’s complaint, the jury being the exclusive judges of the amount of damages to be given.
To this charge the defendants excepted, and the giving of it is now assigned for error.
Two questions arise upon this instruction: 1. Whether the defendants have shown a right to occupy the ground in question; and, 2. If they have not shown such right, whether damages necessarily accrued to the plaintiff from, the facts proved.
When the plat of Williamsport was made and recorded, the act of 1818, contained in the revision of 1831, p. 530, was in force, the first section of which requires of the person laying out a town, previous to selling any lots therein, “to cause to be recorded in the recorder’s office a correct copy of the plat of the town, with the public grounds, if any there be, streets, lanes and alleys, with their respective widths properly marked, and the lots regularly numbered in numerical order, and the size of the lots marked by reference to the plat of said town.”
The second section is as follows:
“ Every donation or grant to the public, or to any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such on the plat of the town wherein such donation or grant may have been made, shall be considered to all intents and purposes as a general warranty to the said donee or donees, grantee or grantees, for his, her, or their use, for the purposes intended by the donor or donors, grantor or grantors aforesaid.”
The dedication provided for in this section applies to and includes streets. Conner v. New-Albany, 1 Blackf. 43.—Indianapolis v. Croas, ante, p. 9. Under the constitution of 1816, it is not doubted that the legislature had power to vacate roads, streets, &c.; and of the propriety of
We are next to consider whether the facts proved entitled the plaintiff to damages; and this results from the settlement of the previous question, and from other authorities on the same point. In the matter of Lewis Street, 2 Wend. 472, Savage, C. J., laid down the rule, that when a lot is sold, bounded upon a street, designated as such on a map of the city, or on a map made by the owner of lands in reference to which sales are made, a covenant may well be implied that the purchaser shall have an easement or right of way in the street, to the full extent of its dimensions.
In the later case of Livingston v. The Mayor of New-York, 8 Wend. 85, the principle above announced was reexamined in the Supreme Court, and afterwards, at great length, in the Court of Errors of New- York, and was unani
By necessary consequence, the invasion of this right entitled the plaintiff to nominal damages, at least; but as no special damages were proved, the verdict for 92 dollars can not be sustained.
If the appellee shall remit the damages exceeding one cent, the judgment of the Circuit Court will be affirmed; otherwise it will be reversed.
The damages exceeding one cent, having been remitted, the judgment is affirmed with costs.