179 Ind. 650 | Ind. | 1913
This was an action by appellees against appellant, begun before the board of commissioners of Brown County, to have a highway, alleged to have been used, as such, by the public, for more than 20 years, ascertained, described and entered of record, pursuant to the provisions of §7663 Burns 1908, Acts 1905 p. 521. Prom a judgment of the county board, there was an appeal to the circuit court. The cause was then venued to Monroe County, where there was a judgment for appellees.
The only question here presented is the sufficiency o£ the evidence to support the decision of the trial court. There was evidence proving that a way, between the terminals described in the petition, had been used to some extent, by a portion, at least, of the traveling public, for as much as sixty-five years, though it is contended by the appellant that there is no evidence to show a public use, within the meaning of the statute. The way used was very crooked, and wound through a hilly country. The route described in the petition is shorter than the way actually used, and makes marked departures therefrom. There was an evident intention by appellees to have a way entered of record that would eliminate many of the crooks in the way, as traveled. In places, the way described in the petition varied from the traveled way as much as forty feet. There were five or six places where there was a variance of more than eighteen feet, and the way described in the petition crossed and recrossed the center of the actually traveled way at frequent intervals.
As the judgment must be reversed, it is unnecessary to consider the sufficiency of the evidence to prove a use by the public. Judgment reversed.
Note.—Reported in 102 N. E. 133. See, also, under (1) 37 Cyc. 41; (2, 3) 37 Cyc. 41-43. As to deviations from definite line of highway established by user, see 57 Am. St. 763.