33 Ind. App. 174 | Ind. Ct. App. | 1904
Appellees petitioned the board of commissioners of Sullivan county, at their May term, 1901, for the establishment of a highway in said county. Viewers were appointed, and at the June term reported in favor thereof. Appellant thereupon objected to the report for these reasons: (1) That it “does not show that said viewers proceeded to lay out and mark said highway upon any ground anywhere;” (2) that when said report was filed, it “contained no description whatever, but the said report has been changed by some one in the absence of said viewers so as to include a description which was not placed there by said viewers, or with their knowledge or consent;” (3) that said proposed highway has not been laid out or marked upon the best ground, or upon any ground. This objection was overruled. Appellant thereupon filed a remonstrance asking that other viewers be appointed, but stating no grounds of remonstrance. Reviewers were appointed as asked, and ordered to report upon the question of public utility. Such report Was made, finding that the proposed highway would be of public utility. Erom an order establishing it, appellant appealed, and in the circuit
The court refused to submit to the jury the question as to whether the highway was laid out, marked, or located by the original viewers, submitting to it the single question of public utility. In the case of Trittipo v. Beaver, 155 Ind. 652, the practice upon appeal from the commissioners to the circuit court was reviewed, and a clear and definite statement of the practice made. The case was one for the establishment of a drain, but its reason makes it equally authoritative in the pending proceeding. The petition and the report -of the viewers and reviewers are considered as the plaintiff’s complaint; the remonstrance as the defendant’s answer; and such facts as are not controverted by the remonstrance stand admitted. The issue made by this remonstrance went only to public utility, and the court did not err in restricting the trial to such issue.
The third assignment of error is to the effect that the court erred in overruling said motion to strike out said report. Treating this report as a part of the complaint, the correctness of the ruling made is presented. The report is in part as follows: “We met as directed in the order hereunto attached and made a part hereof, and, after being duly qualified as appears therein, proceeded to view such proposed highway in the manner as by the law prescribed, which by routes and bounds, course and distance, is as follows, to wit: The said proposed highway to be thirty feet in width, and commences at the place where a public highway intersects the section line on the west side of the northwest quarter of the southwest quarter of section twenty-one, township seven north, range ten west, running thence south to the southwest corner of said section twenty-
As to the further ground that such description was written in the report after it had been filed, and without the knowledge or consent of the viewers, it need only be said that the fact involved was primarily for the board and for the court. Appellant did not, so far as appears, offer any proof, by affidavit or otherwise, in the commissioners’, court as to the truth of the statement which devolved upon him to prove. Blemel v. Shattuck, 133 Ind. 498; Denton v. Thompson, 136 Ind. 446. Its motion filed in the circuit court was verified, but in the absence of any bill of exceptions showing what evidence was presented the presumption must be in favor of the correctness of the ruling.
Judgment affirmed.
On Motion to Modify Mandate.
Roby, J. — An application is made by appellee since the affirmance of the judgment herein for an order directing the circuit court to correct the judgment by specifying therein the width of the road as established. Appellant objects to the making of any order in the premises.
The reports of both the viewers and reviewers fixed the width of the highway at thirty feet. The issue tried was whether or not a highway thirty feet wide along the designated route would be of public utility. The finding was in the affirmative. In Sidener v. Essex, 22 Ind. 201, one ground relied upon by the appellant for the reversal of the judgment was that the width of the road was not specified in the order of the court. In the case at bar appellant has not assigned any error involving such question, nor does it