| Ind. | Dec 16, 1858
This was a suit commenced before a justice of the peace by Kane, for the destruction of a mare by the cars, &c., of the company, under the act of 1853.
The case in the Circuit Court was submitted upon an agreed statement of facts; finding and judgment for the plaintiff for the value of the animal, as agreed upon, and also for costs against the defendant, including 5 dollars docket-fee.
The questions presented are, whether the facts agreed upon sustain the finding, and whether the judgment for a docket-fee is correct.
It appears that the animal was killed within the limits of a town through which the railroad runs, which was laid off, platted, and recorded, but not incorporated. That the killing was within the boundaries of a street, which street had not been opened and worked, nor ordered to be so by the proper authorities, but was, to some extent, traveled by the public, in going to and from a mill situated near the railroad, which road was not fenced. There was no negligence on the part of the servants of the defendants.
We think this falls within the case of The Jeffersonville Railroad Co. v. Dougherty, 10 Ind. R. 549, and The Ind. Central Railway Co. v. Gapen, id. 293. There was a dedication to the use of the public, of the street, and it was being used by the public, to a limited extent.
Per Curiam. — The judgment is reversed with costs.