172 Ind. 84 | Ind. | 1909
Appellees petitioned the Board of Commissioners of the County of Cass, at the March term, 1906, for the establishment of a public highway. Viewers were appointed and directed to make report April 2, 1906. On said date appellants MeKaig and MeMillen appeared and filed separate verified motions, stating that in 1901 proceedings were had before said board for the location and establishment of a highway over and upon the same route described in the petition herein, that the viewers reported the same not to be of public utility, that their report was approved and the petition dismissed, and that no bond to secure the costs had been filed in this proceeding by the petitioners as required by law, and they asked that all proceedings upon the petition be held void, vacated and annulled, and that no further action, be taken until a cost bond should be filed by the petitioners. These motions were overruled, and the report of viewers, then on file, finding the proposed road of public utility, was approved. Appellants MeKaig and MeMillen and others thereupon filed remonstrances upon which reviewers were appointed. The petitioners on the same day voluntarily filed a bond to secure the •costs, which was approved. The reviewers, at the next term, reported in favor of the public utility of the proposed road, and awarded damages to remonstrants, which report was approved, and the highway established by the board, from which order the remonstrators appealed to the circuit court. In the circuit court appellants filed a plea in abatement.
Errors have been properly assigned upon the striking out of the answer in abatement, overruling of the separate motions of McKaig and McMillen, and overruling the motion for a new trial.
The first alleged error involves the construction and application of the following statute: “Whenever any petition for the location, vacation or change of any public highway has been presented to the board of commissioners of any county in this State, and such board shall have appointed viewers for the same, and such viewers shall have reported that they deem the proposed location, vacation or change of such highway of no public utility, then no second or subsequent petition for the location, vacation or change of such highway shall be acted upon by the commissioners, unless the petitioners shall first file with the county auditor a bond with surety to be approved by him, conditioned that such petitioners will pay all costs in the ease if the viewers to be appointed to view such proposed location, vacation or change of such highway, shall report that they deem the same to be of no public utility.” §6737 Burns 1905, Acts 1905, p. 521, §12.
In view of this statute we are unable to say that error was committed by the court in this action.
No reversible error being shown, the judgment is affirmed.