148 Ind. 1 | Ind. | 1897
The appellee sued the appellants to enjoin them from taking down certain gates across an alleged highway passing over and through appellee’s land. The trial court overruled a demurrer to the complaint, assigning insufficiency of facts stated therein to constitute a cause of action. The defendants refusing to plead further, the plaintiff took judgment upon demurrer. The errors assigned only call in question that ruling and the sufficiency of the facts. The substance of the complaint is that in the year 1871, and a long time previous thereto, James A. Cravens owned a large tract of land which was inclosed and used as a farm in Washington county, and during said time a road passed through a part of said farm, which road had been used by said Cravens and some of his neighbors, with his permission, for a number of years. That said road passed through said Cravens’ enclosure by means of gates at each of the fences enclosing said Cravens’ farm, and the same had been changed from time to time to'suit the convenience of said Cravens. That at the March term of the board of commissioners of said county, for 1871, one Aaron L. Hardin appeared before said board and made affidavit
It is conceded that the order of the town board of the town of Hardinsburg, appellant, must depend and rest for its validity upon the action of the board of commissioners of the county, as it is not claimed the road or highway in question has been opened as a street since the annexation of the territory. Such is the law. Tucker v. Conrad, 103 Ind. 349, 355; Insurance Co. v. Patterson, 103 Ind. 582.
The statute above cited has been in force ever since the same was first enacted March 5,1867. The counsel on both sides are substantially agreed that the second order of the board of commissioners was void. That is also correct as a legal proposition. The right and power to set aside or modify a final order or judgment by a court of limited and special jurisdiction, such as the board of county commissioners is, does not exist. When a proceeding is finally ended before the board of commissioners, they cannot take it up again and make further orders or modify those they have already made. Doctor v. Hartman, 74 Ind. 221; Kyle v. Board, etc., 94 Ind. 115, 118; Board, etc., v. State, ex rel, 61 Ind. 75; Board, etc., v. Logansport, etc., Gravel Road Co., 88 Ind. 199.
But it is contended a different rule of construction of the statute cited prevailed in this court from the time Weston v. Lumley, 33 Ind. 486, was decided .until after the first order in controversy here had been made and entered, and that the subsequent change of decision of this court as to the necessity of notice in such cases can not have the effect to invalidate said order. State v. Schultz, 57 Ind. 19; Gibbons v. Copper, 67 Ind. 81, and Higham v. Warner, 69 Ind., 549, are all cited as establishing the contrary rule, that no notice is necessary in such cases. It can
T‘o the same effect is the other case cited by appellants from the decision of this court, namely, Stephenson v. Boody, supra. The facts set forth in the complaint do not show any contract relations entered into
Therefore, the circuit court did not err in overruling the demurrer to the complaint.
Judgment affirmed.