47 Ind. 25 | Ind. | 1874
This was an action by the appellee against.
A demurrer to the complaint was filed by the defendant and overruled by the court, but no question upon this ruling is presented.
Four paragraphs of answer were filed. The second and third were stricken out, on motion of the plaintiff. The first paragraph is the general denial. The fourth alleges, that on the east side of said street, the said plaintiff) in pursuance of his contract, constructed a sidewalk the whole length thereof, the expense of constructing the same being full one-third.
The plaintiff replied to the fourth paragraph of the answer, admitting that no sidewalks were constructed along the lots and parcels of land of the defendant, and stating that the trustees did not order or contract with him for any such improvement; that the length of said Polk street, ordered by the board to be improved, is two thousand six hundred and sixty-five feet, and the width of the same is, sixty-six feet; that the estimate of the cost of said improvement against the lots and parcels of land of the defendant was made according to the whole length of said street per run? ning foot, and the cost of said improvement charged to the defendant is in the ratio of first (front) line of lots and parcels of land owned by the defendant to the whole improved line; that said street runs north and south through said town; that the lots and parcels of land of the defendant are contiguous to the west side of said Polk street; that the railroad track of the defendant obstructs that portion of the west side of said street used and intended for a sidewalk, and said railroad tracks are immediately east of and border on said lots and parcels of land; that the cost of improving said street in front of said lots and parcels of ground of the defendant was much greater than the cost of improving the entire remaining part of said street and sidewalks, etc.
The cause was tried by the court upon the following agreed statement of facts, viz.:
‘ 1. The defendant is the owner of the lots and parcels of land described in the complaint; that on the 24th day of March, 1871, at a regular meeting of the Board of Trustees of the town of Noblesville, a petition signed by a majority in number of the resident owners of lots and parcels of land bordering on Polk street in said town was presented, asking for the improvement of said street from the place where Conner street crosses the same to the south end of the same,
‘ 2. That a quorum was present at each meeting of said board of trustees when any matter connected with said improvement was determined upon.
“ 3. That all the lots and parcels of land of the defendant mentioned in the complaint are on the west side of said Polk street; that said street was originally sixty-six feet wide, but the defendant, without any molestation or disturbance whatever, has constantly and exclusivelyoccupiedand used eleven feet in width off the west side of said street, which runs
The location of the said street, railway track, and lots and parcels of land is described by a map attached to the statement of facts, but which we do not incorporate in this opinion.
“ It is further agreed, if the defendant is to be considered a resident owner of lots contiguous to said street, that a majority of the resident owners of front feet of lots and parcels of land adjoining on said Polk street did not sign said petition for said improvement of said street; the defendant has its main office in the city of Indianapolis, but has an office for the transaction of business in said town.”
Upon this evidence, the court found for the plaintiff refused to grant a new trial on application of the defendant, and rendered final judgment for the plaintiff.
The ruling of the court in refusing to grant a new trial is
Two grounds are assumed by counsel for the appellant^ in opposition to the finding of the court:
1. That, according to the facts, the appellant had no lots or parcels of land bordering on the improved street.
2. That the town trustees had no jurisdiction to order the improvement, because there was not a majority of the resident owners of lots, etc., petitioning for the improvement.
The first position is based upon the theory that by the use of a portion of the street as a way for its road, for the time designated, the railroad company has become the owner of it in such manner that it is no longer a part of the public street; that the strip of eleven feet of the west side of the street is a piece of land owned by the railroad company in consequence of such use, and has for that reason ceased to be a part of the street.
But do the facts warrant the position, that by the use of the part of the street in question the company has become the owner thereof? We think they do not. Were it a question whether, by the use alleged, the company had acquired a right to the way, a different point would be presented. The facts show that the company has used the part of the street in question “ as and for a right of waythat it has been used by the company “ without any molestation or disturbance whatever,” and that the company has occupied the same “ constantly and exclusively.” We do not think that the use of the part of the street “ as and for a right of way” could in anytime ripen into an absolute ownership of the part of the street. It is not alleged that the use was under a claim of ownership of the soil, nor is it claimed or averred that the use was adverse to the right of the public to use the place as part of the street.
We are unable to see any valid objection as to the number of the petitioners. Section 8 of the act provides, that ,e whenever a majority of all the resident owners of any lots
The judgment is affirmed, with costs,