171 Ind. 710 | Ind. | 1908
Lead Opinion
In a proceeding to establish a new highway in Carroll' county, viewers reported that the proposed road would be of public utility, whereupon appellant and others filed a remonstrance against the public utility thereof. Reviewers were appointed, and they, having reported adversely to the remonstrators, the board of commissioners entered an order establishing the highway as prayed. Appellant, alone, appealed to the circuit court. In the latter court, the jury returned a verdict for appellees, and appellant’s motion for a new trial having been overruled, he appeals.
During the progress of the trial, appellant, in the direct-examination of one of his witnesses, inquired: “How much would it cost to put the proposed highway simply through the woods, in a passable condition ? ’ ’ The witness answered that it would cost not less than $200 to put it through the woods; that is, to do such work on it as the road district would do, not counting a removal of the timber, that the
Appellant argues that the term “useful,” as used in the instruction, is, properly, as applicable to the private citizen as to the public, and that the fault of the instruction lies in its natural tendency to lead the jury to believe that if they found that the proposed road would be useful to a citizen, or to a very small number of citizens, and that the- usefulness to them, as individuals, would, exceed the cost of the road, the finding should be for the existence of public utility, without reference to its effect upon public interests.
At least two other instructions, in like vein and effect, were given, and we do not see how the jury could have been misled by the instructions, as a whole, into believing that it was proper to ground public utility upon private benefits.
In instruction eight the court directed the jury that they
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Counsel for appellant cynically complain that in the disposition of this case we left unconsidered two “very important questions,” and invoke in behalf of their client article 7, §5, of the state Constitution.
If destroyed or impaired drainage was a source of damage to appellant, he should have called the attention of reviewers to the fact in his remonstrance.
Rehearing denied.