171 Ind. 155 | Ind. | 1908
Appellants petitioned the Board of Commissioners of the County of Jasper to vacate part of an existing highway, $nd to locate and establish §, n§w one,
The action of the court in sustaining appellees ’ motion and in dismissing the action is assigned as error.
It will be noted that the statute forbade the establishment of the proposed road in case of an adverse report by the reviewers, and no appeal therefrom was expressly given. The holding of the court was that upon the return of this report the law terminated the matter, and neither the board nor the circuit court upon appeal had jurisdiction to proceed further than to enter the proper judgment for costs.
Section ten of said act of 1905 (§6735, supra) contains a material amendment to this section of the old law, and reads as follows: “If a majority of the reviewers last named report against the public utility of such highway, vacation or change, the petition shall be dismissed; but if they report favorably thereto, the remonstrator shall pay the cost of the review, and in ease of a location or change, the highway
Remonstrators, against whom final judgment in highway proceedings were entered, had a right of appeal under the old law, but as before shown petitioners were denied such right. The manifest purpose of the proviso in the new act was to give petitioners a right of appeal from a judgment dismissing their petition, and thus to make their appellate privileges equal to those of remonstrators. Williamson v. Houser, supra. Under the present law an adverse report of the reviewers is not binding upon the circuit court, but upon appeal the cause is. to be heard de novo, and determined upon its merits on evidence produced in open court upon all the issues raised before the board of commissioners. It follows that the court erred in dismissing the action.
The judgment is reversed, with directions to overrule appellees’ motion to dismiss, and for further proceedings.