Campbell v. O'Brien

Newcomb, C. This action was brought by Thomas E. A. Campbell, to recover damages for entering his close and cutting down certain fence-posts thereon. The cause was submitted to the court, and the evidence heard at the December term, 1877, and was taken under advisement. Before judgment the plaintiff died, and the appellants, his executors, appeared and were substituted as plaintiffs. The parties then agreed that the cause should be decided by the court [223] on the evidence submitted at the former term. A finding Avas then entered for the defendant, and judgment Avas rendered accordingly, over a motion of the appellants for a new trial. The only error assigned is the overruling of that motion. The facts, as shown by the record, are substantially as foIIoavs : In the autumn of 1873 the Peninsular Railroad Company, the name of Avhich corporation appears to have been afterward changed to that of the Chicago and Lake Huron Railroad Company, was engaged in grading its road through the city of Valparaiso, and sought permission to cross Third street, the northern boundary of the city, at a level five feet beloiv the then grade of said street. Conferences were held between the officers of the railroad company, the mayor and a committee of the common council of the city, the county commissioners and the township trustee, which resulted in an agreement that the railroad company should be permitted to so sink the grade at Third street, provided they furnished the ground for a change of the street to a point slightly further north, Avhere it could cross the railroad at the surface grade. The land necessary to be occupied by the proposed change of route belonged to the plaintiff. The railroad company, by its agents', McClelland aud Starr, entered into negotiations Avith the plaintiff for the purchase of the necessary skip of ground to make the change.- A price was agreed upon, and, soon after, the railroad company removed the plaintiff’s fence, obstructed the travel at the Third street crossing, and turned it over the plaintiff’s land so agreed to be purchased. The line of the neAv road Avas surveyed by the engineer of the railroad company, the plaintiff being present and assisting in the survey. The change in the coui’se of the highway necessitated the construction of a neAv bridge, to conform to it, over the Pittsburgh, Fort Wayne and Chicago Railroad, Avhich, at that point, ran -in close proximity to the Chicago and Lake [224] Huron Railroad. The plaintiff never received payment for his land, but it does not appear that the public authorities, interested in the change-of the highway, had any notice of that fact until several months after the road was so changed, and the new bridge was erected, and the old highway SO' destroyed by the railroad as to render it impracticable to' resume its use as a highway. The plaintiff resided in immediate proximity to the premises so occupied, and had knowledge of the use of his land for the highway as changed, from the time its use as such by the public commenced. There was no written contract executed by the plaintiff for the sale of this land, but at the May term, 1874, of the Porter Circuit Court, he sued Mc-Clelland and Starr for its price, after having tendered them a deed to the railroad company. On the trial of that action the plaintiff suffered a nonsuit, and afterward petitioned the board of county commissioners to make him compensation for the laud so taken. This petition was, however, abandoned, and, as the next means of procuring payment, the plaintiff and divers other parties presented a petition for a change in the highway, so as¡ to locate it, by an order of the board of commissioners, on the line which had been previously occupied as above stated, over plaintiff’s land. Viewers were appointed, who reported that on examination they found a good and sufficient travelled road already in existence on the route proposed in the petition, and recommended that the prayer of the petition be not granted. This appears to have ended that proceeding. Afterward, on December 10th, 1875, the plaintiff notified the township trustee, in writing, to remove the obstructions in the former road, as he would enclose his land over which the public passed, on the 13th day of that month. He so far proceeded to SO' enclose his premises as to plant fence-posts across the road as used. These were removed by the defendant, who was the' township trustee, which was the trespass complained of225 When the plaintiff agreed to sell the strip of ground in controversy to the railroad company, he knew that the purpose and object of the purchase was to appropriate it as a highway, and knew of the immediate obstruction of the old road, the change of the course of travel occasioned thereby, and of the subsequent erection of the new bridge, as a consequence of such change. The only question in the 'case is, did the acts and acquiescence of the plaintiff amount to a dedication of the locus in quo to the public, for use as a highway ? That there was such dedication we entertain no doubt. True, the owner did not directly dedicate, but he stood by and permitted the railroad company to do so, and this was equivalent to a dedication by himself. He expected to be paid by the railroad company for the land, but the failure of the latter to compensate him could not change the rights of the public, which had been previously granted with his knowledge and consent, and which could not be resumed by him without serious public inconvenience and loss. In 2 Greenleaf Evidence, sec. 662, it is said of a dedication of land for a highway: “The right of the public does not rest upon a grant by deed, nor under a twenty years’ possession; but upon the use of the land, with the assent of the owner, for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment.” This doctrine was expressly approved by this court in The State v. Hill, 10 Ind. 219, and Hays v. The State, 8 Ind. 425. See, also, The City of Columbus v. Hahn, 36 Ind. 330. It is urged by appellants that the public had no right to assume a dedication by Campbell of the premises in controversy, because it was known to the proper public officers that he did not intend to make a dedication, but that he agreed to sell to the railroad company, and that, as a vendor, he had a right to resume possession in case the purchase-money was not paid. [226] While it is true that Campbell contemplated a sale, so far as he was concerned, he knew that the railroad company intended to dedicate the land to public use as a highway, and this he permitted the corporation to do without objection, and without notice of the non-payment of the purchase-money, until after the consideration for the change of route had been received by the railroad company, the old route essentially destroyed, and the new road and the new bridge had, for a considerable period, been used by the public. He assented to the dedication of the land in controversy to the public by the railroad company, the latter assuming to hold by purchase from him, and he was estopped by such assent, after public rights had intervened. 2 Greenleaf Evidence, sec. 663. Under these circumstances, he could not enforce a vendor’s claim against the public. The judgment below ought to be affirmed. Per Curiam. It is therefore ordered, upon the foregoing opinion, that the judgment below be, and it is hereby, in all things affirmed, at the costs of appellants. Woods, J., dissents, and files opinion.