169 Ind. 397 | Ind. | 1907
This proceeding was instituted by appellees on January 29, 1906, before the Board of Commissioners of the County of Huntington to vacate a certain highway. The action is based upon section one of an act of the legislature “concerning highways,” approved March 8, 1905 (Acts 1905, p. 521, §6726 Burns 1905). This section provides “that whenever twelve freeholders of any county, six of whom shall reside in the immediate neighborhood of a highway proposed to be located, vacated, or a change therein made, shall petition the board of commissioners of such county for the location, vacation or change thereof, such board, if satisfied,” etc. Upon filing the petition in this case the board of commissioners, as required, appointed viewers, who subsequently filed their report, setting forth therein that the proposed vacation of the highway in controversy would not be of public utility. Thereupon Houser, one of the petitioners, filed objections, in the nature of a remonstrance, to this report, alleging that the vacation would
The first recites that “now comes Lydia Williamson, and, as an answer in the nature of a remonstrance,” etc., and then proceeds to allege that said remonstrator is the owner of land abutting on the highway described in the petition, and that she is affected thereby, in this that the proposed vacation “will entirely cut off ingress to and egress from a cemetery, and will discommode and inconvenience the entire neighborhood,” and will not be of public utility, Wherefore she prays that the court dismiss the petition.
Appellant unsuccessfully moved for a judgment in her favor upon the answers to the interrogatories; she also moved for a new trial upon the statutory grounds, and for the further reason that the court erred in overruling her motion to require appellees to open and close the case. The motion for a new trial the court denied, and rendered judgment on the verdict against appellant. She appeals, and assigns as errors that the court erred (1) “in striking out the first paragraph of the remonstrance;” (2) “in overruling the motion for a new trial.” The only errors discussed by her counsel relate to the rulings of the court in striking out the first paragraph of the remonstrance and in denying the motion to require appellees to assume the opening and closing of the case at the trial.
Section nine of said act (§6734 Burns 1905) provides that, in the event any resident freeholder of the county shall remonstrate against the proposed highway because it is not of public utility, the board of commissioners may appoint reviewers, etc.
In Metty v. Marsh, supra, which was a proceeding instituted before the board of commissioners to locate and 'construct a public ditch, it is said: “It has so often been adjudged by this court, in' cases analogous to this, that no matter not put in issue before the board of commissioners cán be tried on appeal to the circuit court, that but little can be said in elaboration of the principle. ’ ’
The case of Indianapolis, etc., R. Co. v. Hood, supra, was a proceeding for laying out a highway, instituted before the board of commissioners. In that case the railroad company, on account of the negligence of its attorney, did not appear before the board and file a remonstrance or claim for damages. In the circuit court, on appeal, it unsuccessfully offered to file a remonstrance. It was held in that ease that the trial court did not err in refusing to permit appellant company to file its remonstrance and tender an issue thereon. In passing upon the question this court, by Elliott, J., said: “It is firmly settled that in cases of this character objections must be appropriately presented to the board of
As appellant, under the circumstances, had no right to file her remonstrance in the circuit court, as she did, consequently the action of the court in sustaining the motion to strike out the first paragraph thereof was right, or at least harmless. For the same reason she is not in a position in any manner to assail the decision of the trial court in denying her demand to require appellees to assume the burden of opening and closing the case. It is possibly true, as counsel for appellant suggest, that, upon the unfavorable report made by the first viewers against the public utility of the vacation of the highway, the board of commissioners was not authorized by the statute to appoint reviewers, as was done. This question is not before us; hence we advance no opinion thereon. See, however, Doctor v. Hartman (1881), 74 Ind. 221.
For the reasons stated, there is no available error presented by the record. Judgment affirmed.