Wilson v. Whitsell

Elliott, C. J. The appellants filed a petition before ¡the Board of County Commissioners of Tipton county-, at «the December term, 1860, praying that, the road leading from Tipton to Windfall, in Tiplon county, and-, thence to Heroine,, in Howard county, be so changed as to run - as - follows: “ Beginning, at the point where said-road-crosses -the Peru $ Indianapolis Mailroad, thence in an easterly ¡direction, parallel with the southern boundary of the Indian reserve, to land owned by Evans. $ Bro., thence north along the line , dividing the lands of Evans $• Bro. — 307 — and Joseph W. Wilson, to said Tipton, Windfall and Jerome road.” Viewers were duly appointed to examine the proposed change, and, at the March term, 1861, reported to the board that they had viewed the proposed change, and that it was of public utility, and recommended that it be made. Whitsel and fifty-nine others, “citizens of Cicero township, in said county,” thereupon filed their written remonstrance, protesting against the proposed change, as not being of public utility. Upon the filing of the remonstrance, the commissioners, under the provisions of the statute, appointed three other persons as'viewers, to review and report upon the public utility of the proposed change. At the June term, 1861, the last named viewers reported that they had carefully reviewed the proposed' change, in said highway, and believed the same to be of public utility, and recommend that the same' be located and established as described in the petition and notice to viewers, “provi-' ded the petitioners shall first open and put said new road in as good condition as the old one, at their own expense. But on failure of the petitioners to comply with the above condition, then we report against said change.” The commissioners thereupon entered the following order in reference to said report, viz: “Said report being publicly read, and no person' objecting thereto, it is, therefore, ordered, that said report be recorded,' and that the road be declared a public highway, to the width of forty feet, upon the conditions named in said report, and upon no other, to-wit: that the said petitioners open and put said road in as good repair, as to clearing, bridging, grading and ditching, as the old road; at which time, and not before, the said new route will be established and located as a public highway, and thereafter kept in repair according to law.” At the September term, 1863, of the board of eomrnissioners, Joseph T7. Wilson, one’ of the original petitioners, filed’ a petition stating that the' new road was fully completed, according to the'conditions in the previous — 308 — order of the board, and praying that it be received, and for an order vacating so much of the old road as was changed by said order. Whereupon, as we are informed by the record, “the board proceeded to said road, and made a personal inspection thereof, and, after a careful examination of the same, agreed to receive it in compliance with said condition,” and then and there declared the same to be a public highway, “whenever it shall be opened the width required; and the said road is hereby ordered to be kept in repair as such, from henceforward, and that the old road, between the commencement and termination of the change, be vacated.” The remonstrants then moved the board to set aside the original petition, the report of the viewers, and the order of the board establishing the change, and vacating that part of the old road; but the motion was overruled, and they thereupon appealed to the Tipton Circuit Court. The cause was afterward moved, by change of venue, to the Howard Circuit Court. In the Circuit Court, the appellants moved to strike out the remonstrance, for the reason “that none of the persons signing the same resided along the proposed change, or the highway to be vacated.” The motion was supported by affidavit, but the court overruled it. They then moved the court to dismiss the appeal, on the ground that it was not taken within thirty days next after the determination of said board, locating and establishing the proposed change, but the court overruled the motion. The cause was tried by a jury, who returned a verdict that the proposed change was not of public utility. Motion for a new trial overruled, and judgment against appellants for costs. The errors assigned are: 1. The court erred in overruling the appellant’s motion to strike out the original remonstrance. 2. The court erred in overruling the appellant’s motion to dismiss the appeal. 3. The verdict of the jury is contrary to law, as it is not upon the issue in the cause. — 309 — We will examine them in the order in which they are presented. The first question is, did the court err in refusing to strike out the original remonstrance, on the alleged ground that none of the persons signing it “resided along the proposed change, or the highway to be vacated?” The statute under which the remonstrance was filed provides that “if any one or more freeholders, residing in such county, along such proposed highway, vacation or change, shall object to the same, at any time before final action thereon, as not being of public utility, other viewers may be appointed,” &e. The remonstrance describes the persons signing it, as “citizens of Cicero township, in said county.” This description does not conform to the language of the statute, and yet they may be freeholders, and some one or more of them reside along the proposed change or vacation, within the proper meaning of the statute, which we do not construe to mean that, to enable a freeholder to object, he must reside immediately on the line of the proposed change, or road to be vacated, but in its vicinity, or within such reasonable distance thereof that he may be affected by the change or vacation in his convenience of travel, or otherwise. But the motion was properly overruled, for the reason that the objection, if otherwise properly made, came too late. No objection was interposed at the time the remonstrance was filed, either by the appellants or the board of commissioners. The latter recognized their right to object to the proposed change, and, upon the filing of the remonstrance, appointed viewers to review it; upon their report, and the subsequent proceedings of the board thereon, the final order was made establishing the change, and it was too late to deny their right to make the objection, on appeal, in the Circuit Court. See Little v. Thompson et al., ante, p. 146. But it is urged that the court erred in overruling the appellant’s motion to dismiss the appeal. We think other — 310 — wise. It is admitted that the appeal was taken in less than thirty days after the order of the board, at the September term, 1863, establishing the change, declaring it a public highway, and vacating that part of the old road. But the appellants insist that the report of the reviewers, and the order of the board, at the June term, 1861, established the proposed change, and was final. In this, we think, they are in error. That report, and the order of the board upon it, we apprehend, are without precedent, and certainly without authority; ' but it was not final, nor does it purport to be. so. It was the duty of the viewers to determine and report whether the proposed change was, or was not, of public utility. They do neither, but make a conditional report, that if the petitioners will open the new road, then they say the change is of public utility, but if they refuse to do so, then their report is that it is not of public utility. They were not authorized to annex such a condition, and the petitioners were clearly not bound to comply with it, and unless they did comply, the report stood against the public utility of the change. The change was not, thei-efore, authorized or established at that time. Nor, as we have already said, does the order of the board, made at that term, purport to establish the change. The language is, that when the new route is opened, and made as good as the old one, “the said new route will be established and located as a public highway.” It is also evident that it was so understood, both by the appellants and the commissioners, and hence the petition, at the September term, 1863, to have the new road received and established, and the old one vacated, and the order of the board, after a careful personal inspection, in conformity with the petition. The only remaining error assigned is, that the verdict of the jury is not upon the issue in the cause. The only issue in the cause was made by the remonstrance, denying that the proposed change was of public utility. — 311 — That was the issue properly submitted to, and passed upon by, the jury. There is nothing in the objection. D. Moss and Linsday § Lewis, for appellants. J. Green, for appellees. The judgment is affirmed, with costs.