154 Ind. 549 | Ind. | 1900
This action_was brought by appellees against appellants forjpjnandafr^^njunction to compel them to remove a fence^.constructed by appellant Martin in a public highway upon which appellees! farm abutted, and to prevent them from maintaining the same therein. The separate demurrer for want of facts of each appellant to the complaint was overruled; the cause was tried by the court, a special finding made, and conclusions of law stated thereon in favor of appellees, and, over a motion for a venire de novo, a motion for a new trial, and a motion in arrest, judgment was rendered in favor of appellees.
The errors assigned and not waived call in question the conclusions of law and the action of the court in overruling
Appellants insist that the Superior Court of Tippecanoe county had no jurisdiction of the subject-matter of this action, for the reason that said court was created in 1875 (Acts 1875, p. 55), and the act providing that courts shall issue writs of mandate was enacted afterwards, in 1881 (Acts 1881, p. 379, §1181 Burns 1894, §1167 R. S. 1881 and Horner 1897), and gives jurisdiction thereof only to the circuit courts. It is true that said section of the act of 1881, being §1181 (1167), supra, provides that: “Writs of mandate and prohibition may issue from the Supreme and circuit courts of this State,” but, in addition to the jurisdiction given by other sections of said act of 1875 to said Superior Court, section fourteen thereof expressly gives said court and the judge thereof, in vacation, power “to grant restraining orders, injunctions and writs of ne ex'eat, to issue writs of habeas corpus, and of mandate, and prohibition, to appoint receivers, master commissioners, and commissioners to convey real property * * * as is now, or may hereafter be conferred on circuit courts, or the judges thereof.” This section not only gives the same jurisdiction over the matters mentioned therein to said Superior Court and the judge thereof as was then vested in circuit courts, but also all jurisdiction over such matters as might thereafter be conferred on the circuit courts. Whatever jurisdiction of said matters, therefore, was conferred on circuit courts by the act of 1881 was by said act of 1875 given to said Superior Court. Hockemeyer v. Thompson, 150 Ind. 176. It is clear that said court had jurisdiction over the subject-matter of this action, and did not err in overruling the motion in arrest of judgment, asserting want of jurisdiction as the cause therefor.
The reason assigned for a venire de novo was that the special finding of facts was not signed by the judge. If
As the questions presented by the demurrers to the complaint and the exceptions to the conclusions of law are the same, a determination of the latter necessarily determines the former.
■ It appears from the special finding that appellees are, and have been since 1893 or 1894, the owners of real estate abutting upon the east side of a highway in Tippecanoe county for a distance of about 130 rods, and that the only means of ingress to and egress from said real estate is by said highway; that appellant, Martin, is, and has been since 1894, the owner of real estate abutting upon the west side of said highway, adjacent to the real estate of appellees. Said highway was fenced on each side, and the distance between said fences varied, but at no place was the distance less than forty feet, nor more than forty-four feet; that said highway was worked and graded, and ditches were made on each side, and by reason of said side ditches, and the action of the water, and the wear of travel, there were left, twenty-five or thirty years ago, on each side of the traveled way, and outside of said side ditches, well defined banks, of greater or less height, in places as much as four feet, and usually abrupt and nearly perpendicular, on the top of which banks stood the fences bounding said highway. In 1896 appellant,
The conclusions of law stated were: (1) That the obstruction on said highway is a public nuisance, and should be abated by the order and decree of court; (2) that there should be a decree directing appellant, Martin, to abate and remove said nuisance, and enjoining him from renewing and continuing the same; (3) that appellees are entitled to an order and decree against appellant, McCleve, as supervisor, to remove said fence, and abate said nuisance; (4) that appellees are entitled to judgment against appellant, Martin, for $25 damages.
It is conceded by counsel for appellants that the erection of said fence in the public highway was a public nuisance, even though it did not operate as an obstruction to public travel. This is the settled law in this State. City of Valparaiso v. Bozarth, 153 Ind. 536, and cases cited. It is also true that a public nuisance cannot be enjoined at the suit of a private person. McCowan v. Whitesides, 31 Ind. 235; Fossion v. Landry, 123 Ind. 136. A private person can, however, maintain an action for the obstruction of a public highway, if he thereby sustains some particular or peculiar injury different in kind and not common to the general public. Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101, 104, 105, and cases cited; Matlock v. Hawkins, 92 Ind. 225, 228; Stetson v. Faxon, 19 Pick. 147, 31 Am. Dec. 123, and note pp. 132 135; McCowan v. Whitesides, supra; Pettis v. Johnson, 56 Ind. 139; Fossion v. Landry, supra.
It is also held in this State that a person owning real estate abutting on a highway may maintain an action for and enjoin the obstruction of said highway immediately in front of said real estate, even if the obstruction is not upon
The owners of real estate abutting upon a highway have a peculiar and distinct interest in the highway in front of their real estate; this interest includes the right to have the highway kept open and free from any obstructions which prevent or materially interfere with the ordinary means of ingress to and egress from said real estate. Any permanent obstruction of a public highway is a nuisance, and, if it obstructs or materially impairs or interferes with the means of access to the abutting real estate, the owners of said real estate suffer a peculiar and particular» injury, different in kind from the public generally. In such case the owner of such real estate may maintain an action for damages and to enjoin such obstruction, whether the obstruction is on the part of the highway laid upon his real estate or not. Indiana, etc., R. Co. v. Eberle, supra, and cases cited. To maintain such an action, it is not necessary for the abutting landowner to show that he has been entirely deprived of the means of access to his real estate, but it is sufficient if his means of access thereto have been materially impaired or interfered with. Indiana, etc., R. Co. v. Eberle, supra; Pittsburgh, etc., R. Co. v. Noftsger, supra; Egbert v. Lake Shore, etc., R. Co., supra.
The facts stated in the special finding show that the fence was built in the public highway in front of appellees’ real estate, which abutted thereon, and that said fence materially impaired and interfered with their means of access thereto, and that the result of the impairment and interference with such right, if allowed to continue, will be the depreciation in the annual rental value of said real estate, and also its market value, and that appellees’ damages up to themom-.. mencement of this action are $25. Such facts show that
As this action was to recoverjlamages for said obstaiction, and compel its removal jmd enjoinjLfeq continuance, it was not necessary or proper for the court to find tin; amount said real estate was damaged byjsaid. obstruction upontihethep^ that itpras pqj’ptanepJ. The complaint did not recognize the right of appellants to maintain said obstruction, and continue the use of the part of the highway wrongfully appropriated, but demanded the removal of said obstruction. All that the court was required or authorized to find was the amount of appellees’ damages to the commencement of this action, and what effect, if any, the continuance of said nuisance would have on the value of said real estate. Indiana, etc R. Co. v. Eberle, supra, p. 551.
It is stated in the special finding that after said obstruction was placed in said highway by appellant Martin, appellees placed a gate in the fence on the east boundary of said highway, through which to pass to and from their land, and that said gate was ten feet wide, — one foot narrower than the average width of farm gates in that neighborhood. Appellants insist that this finding shows that the impairment and interference with access to appellees’ said real estate was occasioned, in part at least, by their own act in constructing the gateway too narrow. A gateway ten feet wide was wide enough to furnish convenient access to appellees’ farm from the highway, as it was before said fence was unlawfully placed therein, and they had the same right to erect a gate of that width after the unlawful act of appellant as they had before.
It is next insisted that this action cannot be maintained, for the reason that other adequate remedies are given by §§2048, 2148, 6831, 6837, 6838 Burns 1894, §§1964, 2061, 5080, 5087, 5088 Homer 1897.
It was held in State, ex rel., v. Kamman, supra, that a road supervisor could be compelled by mandate to remove obstructions from a public highway in his road district. Under the facts found, it was the duty of appellant, McCleve, as road supervisor, to remove said obstructions from said highway. No question is presented by the assignment of errors concerning appellees’ right to sue appellants in the same action. The conclusions of law were not erroneous.
It is next insisted that the court erred in overruling the motion of appellant Martin for a new trial.
The first cause assigned for a new trial is that the special findings are contrary to law. Under this specification certain findings are objected'to by appellant because they contain evidentiary facts, conclusions of law, and are outside the issues in the case. No question concerning such defects, if they exist, is presented by said specification.
The court found that by reason of said obstruction ingress to and egress from appellees’ premises is more difficult and dangerous, and requires more care und time in effecting a passage through said gateway, and is attended with more danger of breakage and other los<*. Appellant insists that the evidence does not warrant this finding. Witnesses testified that in driving out at the gate horses were not disposed to approach near the new fence on account of the barbed wire along the top thereof, that they had to drive carefully with a wagon, and1 back, to get out through the gate into the highway without cramping the wagon, and that in hauling posts and corn through said gate they could hardly get in and out, and that in driving through with hay-ladders loaded with straw or hay the hind wheels or ladders would generally catch on the posts, and that they had trouble nearly every time in getting cut; that they broke corners off of hay-ladders in going in, often had to lift the end of the wagon over to get in; that they did not believe one could get through with hay-ladders unless they were narrow; that an engine, clover-huller, and wagon attached went in and ®ut at said gate, except thát they had to lift the wagon around as they went in and also as they went out; that, if the highway had not been obstructed, they would have had a turning way at the gate of about forty feet, and that the distance from tbe gate to the new fence was only about twenty-four feet.
One witness testified that he “had hay-ladders on a wagon coupled sixteem feet long, and got fast in going in at the
Appellants urge that the court erred in admitting evidence of damages to said farm on the theory that said obstruction was permanent. If such evidence was admitted, it was harmless, for the reason that the court assessed the damages at $25 up to the commencement of this action, on the theory that the obstruction was not permanent, but temporary. The trial court, in assessing the damages up to the commenee
It is urged that the court erred in overruling the motion of appellant Martin to modify the judgment. Such motion and the ruling thereon can only be made a part of the record by a bill of exceptions or order of court. Ewbank’s Manual §26 p. 31; Hamrick v. Loring, 147 Ind. 229, 232, and cases cited. As counsel for said appellant have not indicated the page and line where said motion and the ruling thereon, if any, are made a part of the record by a bill of exceptions or order of court, we assume that the same were not so made a part of the record. State v. Winstandley, 151 Ind. 495, 501, 502. The record, therefore, presents no question concerning the correctness of the action of the court in overruling said motion. • Finding no available error in the record, the judgment is affirmed.