150 Ind. 88 | Ind. | 1897
This was a suit by the appellant John Seisler against the appellees George Smith and the Board of Commissioners of Miami county in two paragraphs of complaint. From each paragraph it appeared that the lands of the county, held for a poor asylum, were separated from those of the appellant and the appellee Smith, severally, by a section line running east and west, and those of the appellee lay between the appellant’s tract and a prominent highway running north and south. The first paragraph claimed an amcient easement in the nature of a private way over said section line from said highway back to, the lands of the appellant, and which in the year 1880, by agreement, had been closed and another way over the lands of Smith substituted, and which substituted way Smith now refuses appellant the right to use. The relief prayed was that the obstructions of the original way be declared a nuisance, and removed, that the appellees be enjoined from obstructing or interfering with the use of said way, and for damages. The second paragraph alleged the existence from 1840 to 1880 of a public highway corresponding with the location of said alleged private way which, during all of said period, had been used by the public generally as a highway, with the knowledge and concurrence of the various owners from time to time of said lands, and that in said latter year the appellees had obstructed said alleged highway with
By agreement, and certainly by the rules of practice, the cause was regarded as of equitable cognizance. It was therefore the province of the court to enter its own finding, and it could not be error to disregard “the verdict of the jury.” Ketcham v. Brazil, etc., Co., 88 Ind. 515; Pence v. Garrison, 93 Ind. 345; Farmers’ Bank v. Butterfield, 100 Ind. 229; Jennings v. Durham, 101 Ind. 391. That the court erred in rendering judgment is not a “specific assignment” of error, as contemplated by section 667, Burns’ R. S. 1894; Hawks v. Mayor, etc., 144 Ind. 343; McGinnis v. Boyd, 144 Ind. 393. The questions discussed by counsel, however, arise upon the motions for a new trial. The first of these relates to the sufficiency of the evidence, under the second paragraph of complaint, to prove the existence of a highway upon the line in question. It is conceded by counsel for appellant that this court is denied the power to review a question depending upon conflicting evidence, but, they urge that there is no conflict, since, as they claim, appellant’s evidence was of a positive character while that of the appellees, they further claim, was to the effect that the witnesses knew of no such road, and was of a negative character,
It is next complained that the court erred in rejecting as evidence two transcripts of the location and change of highways in the neighborhood of the way in question. Without assuming a radical error in the description of the highway so located, it could have no possible relation to the way in question here. This we have no right to assume. The way, a part of which was vacated and changed, extended east from the prominent highway already mentioned, upon the line
The remaining question is as to the refusal of a new trial as of right. In actions to quiet title to real estate, or in actions for ejectment under section 1062. Burns’ R. S. 1894, a new trial as of right is allowed by section 1076, Burns’ R. S. 1894. This right, however, has been frequently held not to obtain where the plaintiff has associated with any such action, and
Conceding all that counsel for the appellant claim., that a new trial of right is allowable where the title to an easement is in issue, .we have no authority, in view of the decisions just cited, for allowing a new trial as of right where obstructions of a public highway are sought to be abated as a nuisance, further maintenance enjoined, and damages claimed. Such an action or suit would not, as in ejectment (section'1062, supra), involve “a valid subsisting interest in real property, and a right to the possession thereof,” nor would it involve the title to real estate as contemplated by section 1082, Burns’ R. S. 1894. The law does not recognize in an individual a private property interest in a public highway. Fossion v. Landry, 123 Ind. 136, and cases there cited. And certainly no such possessory rights as contemplated by the ejectment statute. We find no error in the record.
Judgment affirmed.