4 Blackf. 234 | Ind. | 1837
This was an action of trespass quare clausum fregit. Blake declared against West and others for breaking
By consent of parties the cause was submitted to the Court for trial without a jury. The plaintiff proved his possession of the closes, and the breaking and entering them by the defendants, the throwing down his fences, &ci; he also proved that they burned a quantity of rails. The defendants gave in evidence the plat of the town of Indianapolis, deposited in the recorder’s office of Marion county, agreeably to an act of the legislature, approved February 9th, 1831. They then proved that all the acts established by the plaintiff to have been done by them, were committed on the streets as laid out in said plat, in removing fences, &c. Ail the evidence on each side was objected to as offered, the objections overruled, the testimony admitted, and exceptions taken. The Court gave' judgment for the plaintiff; the defendants took exception and appealed.
It was contended in the argument of this cause, that the general replication, de injuria, does not put in issue, but admits, the existence of the highways set up in the special plea. The view which we shall take of the ease renders it unnecessary to decide upon the correctness of this point.
We shall consider in the first place, whether the plat of the' town of Indianapolis was properly admitted in evidence, and what is its legal effect? This must depend upon the solution of another question, and that is, whether the statute of February 9th, 1831, entitled “An act to authorise the agent of the state for the town of Indianapolis to lay off the lands belonging to the state into lots and offer the same for sale,” be
There is no express provision making this a public act, nor was such a provision necessary to give it that character. Should this statute be considered to be a special act, it would follow that a part of the out-lots have been laid off, and parts of the streets and alleys between them, as marked and designated in the public record, have been established by virtue of a public law, and other parts by a private statute; and that some of the duties of the agent, similar in their nature, have been prescribed by public—some by special acts. The legis
But it is contended that the streets and alleys designated upon it are not public ways, without having been first opened by some agent authorised to do so; or without having been sanctioned by use. This objection cannot be sustained. The legislature may establish a road by a direct act of legislation; or they may do it through the agency of commissioners, viewers, and Courts. In the case before us, they have done it by directing the agent for Indianapolis to take the necessary steps as to causing surveys to be made, and metes and courses to be designated, and by declaring the map with those metes and courses to be a public record. Nothing more was necessary to render the streets and alleys of Indianapolis public ways. As such the defendants had a right to use them, and for that purpose to remove obstructions. This they did, and have proved that the removal of them was the injury complained of by the plaintiff. Their justification, therefore, as to breaking and entering the closes, the gist of the action, is complete. • •
The plaintiff, however, urges that the judgment of the Circuit Court is correct, because, admitting the existence of the ways and the right of the defendants to use them, they were guilty of a trespass for using them in an .unlawful manner. Whether the evidence shows that they did só use them, is not for us to say. But this position of the plaintiff gives rise to another question^ which is, whether, under the issue formed by his replication of do injuria sua propria, it was competent for him to prove the unwarrantable conduct of the defendants? The law on this point is against him. The doctrine is well settled, that when the plea justifies the gist of the action, it is
The judgment is reversed with costs. Cause remanded, with leave to the plaintiff to amend his replication, <fec.