69 Ind. 549 | Ind. | 1879
Proceedings by the Board of Commissioners of Switzerland county, to ascertain, describe, and enter of
Motion for new trial overruled; motion in arrest of judgmeut overruled; judgment, ordering the road to be entered of record as a public highway, as ascertained and described by the verdict, thirty feet wide; appeal.
In this court we find eleven assignments' of error. They are too long to state, nor is it necessary to state them. The first two go to the sufficiency of the petition; the next three go to the jurisdiction of the Board of Commissioners of Switzerland county, to the jurisdiction of the Switzer
It is not error to commence such proceedings by petition, and doubtless proper, when moved by any person other than the board of commissioners; but the board may proceed upon their own motion, if'they think it proper to do so. But a written petition is not necessary in either ease.
The sixth assignment of error presents the question of overruling the motion in arrest of judgment. We can see no ground to support the motion, and none has been shown to us.
The seventh assignment objects to the interrogatories propounded to the jury, upon which they based their special finding. To these'we can find no objection. They present important questions: 1. Was there such a road? 2. Had it been used twenty years? 3. What was its description? Each of which is directly important to the case.
The eighth and ninth assignments go to the instruction's. These are causes for a new trial, and not grounds for assignments of error.
The eleventh assignment of error is that the court refused to propound a certain interrogatory to the jury, as to the width of the road, as the basis of a special finding. This is a cause for a new trial, and not for an assignment of error.
There remains yet the tenth assignment of error, which
The instructions are too numerous and too long to set out. If we are right in this opinion, those given by the court are right, except that some of them are quite too favorable to the appellants. Those asked by the appellants, and refused by the court, were to the effect that, if the petition was insufficient, the proceedings could not be maintained; they were therefore properly refused. The appellants seem to think that the proceedings should be the same as those instituted to survey, locate and establish a public highway originally. This is not necessary, except as to the exactness of the road in its survey.
The evidence is clearly sufficient. It shows that the “ Donation Road,” as it was called, had been used more than twenty years, and regularly worked from time to time as a .public highway. The survey shows the termini exactly, and the line of the road between them, by distances and directions from point to. point. Any practical surveyor could easily ascertain and describe the road as it is surveyed. It should be kept in mind, that the proceedings were not instituted to survey, locate and establish a highway originally, but to cause a road which had been used for twenty pears, but not recorded, - “to be ascertained, described and entered of record.” Sec. 45, 1 R. S. 1876, p. 534. This, as it appears to us, has been regularly done according to law. There is no error in the record.
The judgment is affirmed, at the costs of the appellants.