Henby v. Trustees of Ripley Township

10 Ind. 45 | Ind. | 1858

Hanna, J.

Application having been made by petition to the board of trustees of Ripley township, in the county of Rush, for opening a township road passing through the lands of Henby, the appellant, he remonstrated. His remonstrance was overruled, when he prayed to have his damages assessed, which was done, and the road was ordered to be opened. He then applied for leave to erect swinging gates across said road on his own land, which application the trustees refused. He appealed to the board of commissioners of Rush county, where the decision of the township trustees was affirmed; and on appeal to the Circuit Court, a like result ensued. He brings the case to this Court upon a single question, to be resolved upon a proper construction of § 35, 1 R. S. p. 314, which reads as follows:

G. C. Clark, for the appellant. A. W. Hubbard and L. Sexton, for the appellees.

“Any person may have swinging gates put on such township highways on his own land under such regulations as such trustees shall prescribe, but in such case he shall keep the same in a condition to be opened by persons on horseback; and any person leaving any such gate open, for every such offense shall be liable to a fine of one dollar, to be recovered before a justice of the peace.”

There can be but little doubt about the construction that ought to be given to this section, when we look carefully to its language. Such gates are put up “under such regulations as such trustees shall prescribe.” Without the trustees thus act — thus prescribe regulations — a landholder has no authority to construct and maintain such gates. He cannot act of his own volition, and without their authority. And if not, why ask their authority, if they are compelled by law to make the grant? This Court decided, in the case of The State v. Dunning, 9 Ind. R. 20, that the governor had no power to remit a forfeiture until the legislature had “prescribed the regulations,” &c. The reasoning upon that point in that case is conclusive in this case.

Per Curiam. — The judgment is affirmed with costs.