170 Ind. 69 | Ind. | 1908
Appellees petitioned the Board of Commissioners of the County of Sullivan for the vacation of a part of a public highway. Viewers were appointed and reported favorably. Appellants remonstrated upon the ground that the proposed vacation would not be of public utility, and reviewers were appointed, who reported in favor of the petitioners. Appellants, thereupon, filed a remonstrance for damages occasioned by the vacation, and appellees moved to reject the same, for the reason that the part of the road to be vacated did not pass through appellants’ lands, which motion was overruled and reviewers appointed to assess damages. These reviewers awarded appellants damages, and the board entered an order vacating the highway upon payment of such damages.
Appellants appealed to the circuit court, and moved to dismiss the petition because of failure to name appellants as landowners affected by the proposed vacation. This motion was overruled, and appellees refiled and submitted their Tnotion to strike out appellants’ remonstrance, claiming damages, which motion the court sustained, and entered judgment approving the reports of the viewers and reviewers upon the question of public utility, and vacating the highway as described in the petition.
The.errors assigned call in question the action of the court in overruling appellants’ motion to dismiss the petition, and in sustaining appellees’ motion to strike out the remonstrance for damages.
The road proposed to be vacated runs from the southwest corner of appellants’ land west eighty rods to a public road ^running north and south, and the situation presented can be most readily understood from an examination of the subjoined plat.
The fallacy in appellees’ contention is in the assumption that the part described and asked to be vacated in itself constitutes a highway, whereas it forms only a portion of a continuous line of road, the center of which begins at the southeast comer of the northeast quarter of the southeast quarter of section thirty-six, in township eight north, range ten west, and runs thence north eighty rods, and thence west eighty rods. A road as thus described and thirty feet in width passes over and through appellants’ lands,'and occupies a tract fifteen feet square out of the southwest corner thereof. A proceeding to vacate any part of this road clearly affects appellants’ rights as owners of the tract of land through which it passes, and to and from which it affords a way of ingress and egress, and gives them a right as such owners to resist the proceeding, and to obtain damages for such injuries as they may sustain by reason of the vacation, if granted. It is plain that the remnant of the road involved, after this proposed vacation, would be a mere ml de sac; and as appellants’ counsel well say, if appellants can be denied compensation by way of damages for the vacation of the west end of this highway, upon the same principle the south end may be vacated and the road utterly destroyed without affording any redress for grievances inflicted upon appellants. The court erred in striking out appellants’ remonstrance for damages.
The judgment is reversed, with directions to overrule appellees’ motion to strike out appellants’ remonstrance for damages, and to take further proceedings not inconsistent with this opinion.