108 Ind. 137 | Ind. | 1886
In this case, the apjiellant Palmer sued the appellee in a complaint of two paragraphs, in each of which he sought to enjoin appellee, and all persons claiming under it, from entering upon and taking possession of a certain highway, and from erecting and maintaining thereon toll-houses and toll-gates, and from in any manner interfering with or obstructing the rights of appellant, and of those for whom he sued, to travel over such highway. The cause was put at issue and tried by the court; and, at appellant’s request, the court made a special finding of the facts of this case and thereon stated its conclusions of law, in appellee’s favor. Over appellant’s exceptions to the court’s conclusions of law, and over his motion for a new trial, the court rendered judgment in appellee’s favor for its costs in this action expended.
In this court, appellant has assigned, as errors, the overruling (1) of his demurrer to the second paragraph of appellee’s answer to the first paragraph of his complaint, and (2) of his demurrer to the second paragraph of answer to the second paragraph of his complaint, (3) the sustaining of appellee’s demurrer to the first paragraph of his reply, (4) error of the court in its conclusions of law, and (5) the overruling of his motion for a new trial herein.
In the natural order of things, of course, these cross errors •first require our attention and consideration ; for, if the appellant has not stated a cause of action against the appellee, in either paragraph of his complaint herein, it is wholly immaterial whether or not the trial court committed any errors ;and, if so, what errors, in its subsequent rulings in the progress of this cause. In the first paragraph of his complaint herein, appellant alleged, in substance, that, on October 5th, 1883, he was, and had been for more, than twenty years, the owner in fee simple-of the northeast quarter of section 24, in township 26 north, of range 2 east, and also the south half of the southwest quarter of section 1, in township 26 north, of range 2 east, all in Cass county, Indiana; that during all such time, he had occupied such real ■estate as and for his home; that through his said land, there was located a public highway which, after passing through his lands, ran in a northeasterly direction to the city of Logansport, and was the only way whereby he could reach such city; that such highway had always been known as the “ Kokomo Eoad,” was originally laid off by the proper authorities as a public highway, and, for more' than twenty years, had been worked and used as a highway; that large sums of money had been expended by appellant and other persons, living along the line of such road and through whose land it passed, and by the public authorities, in grading and improving it and making it fit for public travel.
Appellant alleged that he brought this suit for himself and other parties, who owned the lands through which such road passed, whose names were too numerous to be stated in the complaint herein, and he averred that such highway had been a public thoroughfare, at all times open to the public without objection or hindrance, from any person or persons,
In the second paragraph of his complaint, after having-stated substantially the same facts as he had averred in the-
To each of these paragraphs of complaint appellee’s demurrer, for the alleged insufficiency of the facts therein to
We are of opinion that appellant has not stated facts sufficient, in either pai’agraph of his complaint, to constitute a cause of action against the appellee, in favor of himself or of the numerous other persons for whom he has brought this suit. In the first paragraph of complaint, nothing is alleged, beyond the statement that appellee’s action, in entering upon and taking possession of the “ Kokomo Road,” and in erecting toll-houses and gates thereon, was without any authority of law, or unlawful. This, it will be observed, is not the statement of any fact, but is merely the pleader’s conclusion from facts which are not stated and are not apparent.
In section 3628, R. S. 1881, in force since May 6th, 1853, provision is made that the directors of a gravel road corporation, such as the appellee, may locate its road “ over and upon any State or county road, or other public highway, with the consent of the board of county commissioners of the county, entered of record and granted upon such conditions, as to such board may seem just and reasonable.” Where,, therefore, as here, it appears or is shown that a gravel road corporation has entered upon and taken possession of a public highway, it will be presumed, in the absence of any averment to the contrary, that such possession is with the consent of the proper county board, and is, therefore, authorized, by law. If it were the fact, that appellee’s entry upon and. possession of the “ Kokomo Road ” were without the consent of the board of commissioners of Cass county, the fact should-have been averred by appellant, and the conclusion would, have followed, without any averment, that such entry and possession were unauthorized by law, or unlawful. The ci.viL
But, if the appellant had pleaded the facts in the case now before us, neither paragraph of his complaint would, we think, have shown any cause or right of action either in him or in those for whom he brought this suit. The substance of the charge against appellee, in each paragraph of complaint, is, that it had entered upon and taken possession of the “ Kokomo Road,” and was exercising thereon the rights, privileges and franchises of a gravel road corporation, without any authority of law. Admitting the truth of the facts alleged in either paragraph of the complaint, precisely as they are stated therein, it does not follow by any means, that these facts are sufficient to showany cause or right of action against appellee, in favor of appellant or of those for whom he sued, or to entitle him or them to the relief prayed for, or any other relief, as against the appellee. It is not enough, in such a case, that the complaint, or either paragraph thereof, should state such facts as would have required the appellee, in an information, in the name of the State, on the relation of the proper prosecuting attorney, to have shown by what warrant or authority it had entered upon and taken possession of the “ Kokomo Road,” and had exercised corporate franchises thereon. That is all that appellant has shown by the facts stated in either paragraph of his complaint herein, and they do not entitle him, or those for whom he has sued, to the relief demanded, or to any other relief against the appellee. This is settled by our decisions. State, ex rel., v. Bailey, 19 Ind. 452; White v. State, 69 Ind. 273; Hasselman v. United States Mortg. Co., 97 Ind. 365; Williamson v. Kokomo, etc., Ass’n, 89 Ind. 389; North v. State, ex rel., 107 Ind. 356.
If dt be conceded that the complaint shows, that the acts of the appellee in entering upon, taking possession of, and exercising corporate franchises over the “ Kokomo Road,” were unauthorized by law, still it must be held, we think,,
We are of opinion, therefore, that the court below erred in overruling appellee’s demurrers to each paragraph of appellant’s complaint herein.
This conclusion renders it unnecessary for us to consider any of the errors assigned by the appellant. Where, as in this case, the plaintiff is the appellant, and his complaint is held to be insufficient, any subsequent error appearing in the record must be regarded as harmless, and the judgment must 'be affirmed. Fell v. Muller, 78 Ind. 507 ; Clawson v. Chicago, etc., R. W. Co., 95 Ind. 152; Ice v. Ball, 102 Ind. 42.
The judgment is affirmed, with costs.