21 Ind. App. 449 | Ind. Ct. App. | 1899
Appellant was prosecuted for trespass under the following provision of the statute: “Whoever * * * being unlawfully upon the inclosed or uninclosed laiid of another, shall be notified to depart therefrom by the owner or occupant, or his agent or servant; and * * * neglect or refuse to depart therefrom, — shall be guilty of a misdemeanor, and, upon
Under the statute defining the causes for which a new trial may be granted in criminal cases, the third reason assigned in the motion in this case does not come within the statute, and hence does not present any question for review. The first and second reasons, however, present the question discussed by counsel, and under them, the court can decide the question of contention.
The lands described in the affidavit upon which the trespass is charged to have been made, were owned by one Samuel Sipe, and occupied by'one Andrew Sipe, who was the tenant and in possession. A public highway bounds one side of the lands, and it was in and upon this highway that the trespass, if any, was committed. It is shown by the evidence without contradiction that, soyie three or four years prior to the date fixed in the affidavit, the Salemonie Mining -and Gas Company constructed a two-inch pipe line on the high
The controlling question is simply this: Has the owner of lands abutting upon a public highway such a proprietary right in the highway, to the center thereof, as to notify and direct one who is unlawfully upon such part of the highway to depart, and will the refusal and failure of such person to depart, upon such notice, render him liable to prosecution for trespass under the statute? It is the firmly established rule in this State that the owner of lands abutting upon a public highway owns the fee to the center thereof, subject only to the easement which the public has for highway purposes. Cooley on Torts, 318; People v. Foss, 80 Mich. 559, 564, 45 N. W. 480, 8 L. R. A. 412; Consumers, etc., Gas Co. v. Huntsinger, 14 Ind. App. 156.
The right of the owner yields only to the greater rights of the public. As we have said, the only right the public has is simply an easement affording a passage over and along the highway. The Consumers’
It is likewise settled that such abutting owner has a special proprietary right in the highway separate and distinct from that of the general public, and that this right cannot be taken or impaired without compensation. Haslett v. New Albany, etc., R. Co., supra. It has been held by this court that the easement for road purposes, which grants to the general public the right to pass and repass over a man’s land does not carry with it a right to use it for other purposes not legitimately connected with the use of highways. The Consumers’, Gas, etc., Co. v. Huntsinger, supra.
It cannot be said that the construction of a pipe line for carrying natural gas vcomes within the uses for which public highways were intended. It has been held'that a right may be granted by the board of commissioners to construct a pipe line along a public highway; but it is also the law that constructing such pipe lines is an imposition of an additional burden upon the fee from that embraced in the easement for highway purposes, and that compensation must be made to the owner of the fee. Kincaid v. Indianapolis, etc., Gas Co., 124 Ind. 577, 8 L. R. A. 602.
It seems to us that when the Salemonie Gas Com-, pany entered upon the lands in question without the consent of the owner of the fee, and without permission of the board of county commissioners, it became a trespasser, and was upon such lands unlawfully. If,it was unlawful in the first place to go upon the lands to construct the pipe line, without the consent of the owner, it was likewise unlawful to go upon them to remove the same, and hence when appellant was upon the lands of the prosecuting witness, in charge of a force of men engaged in removing such pipe line, he was unlawfully there. While appel
Appellant insists that as the owner and occupant of the land stood by and saw the pipe line being constructed, made no objection thereto, and by his long silence acquiesced therein, he is estopped from asserting the right to notify appellant to leave the premises. If the facts upon which appellant relies to work an estoppel were undisputed, there might be much merit in his position; but there is evidence in the record, as we have seen, from which the jury might, and doubtless did, find that the owner and occupant did not know that said line was being constructed in front of his premises until after it was completed. The appellant urges that the doctrine of estoppel is applicable here in his behalf, on the ground that Sipe stood by, had full knowledge that the pipe line was being constructed, and that he did not, at the time, or thereafter, make any objection, or offer any protest, etc. Counsel for appellant say: “The evidence shows clearly that no objection was ever made by the prosecuting witness at the time of the construction of the pipe line, nor since that time up to the commission of the alleged trespass, either to the construction or maintenance of said line.” In this statement counsel are not supported by the evidence, for, as we have seen, there is evidence from which the jury doubtless did conclude that the prosecuting witness did not know that the pipe line was being constructed along his land's. It is true that the evidence does not show that he made any
It is further urged by appellant that he was not guilty of the offense charged, because it does not appear that he was unlawfully upon the premises of the prosecuting witness, and, if he was upon the premises lawfully, he could not be there unlawfully, until after notified to depart, and hence, as he was not notified a second time to depart, he did not violate the provisions of the statute under which he was prosecuted. Appellant’s reasoning is good, but his premise is unsound, and hence his conclusion not tenable. He as
In his work on Roads and Streets, Judge Elliott, at page 536, says: “As owner of the fee, subject only to the public easement, the abutter has all the ordinary
Abutting owners have the exclusive right to the soil, subject only to the easement of the right of passage in the public, and the incidental right of properly fitting the way for use. Elliott Roads and Streets, p. 519, and authorities there cited. Subject only to the public easement, the proprietor has all the usual rights and remedies of the owner of a freehold. As was said by Elliott, J., in Kincaid v. Indianapolis Cas, etc., Co., supra: “Subject to the right of the public the owner of the fee of a rural road retains all right and interest in it. He remains the owner, and, as such,