Stewart v. Beck

Elliott, J. — The appellant’s complaint seeks an injunction preventing the construction of a gravel road across his land, and alleges that the order of the board directing the opening and improvement of the road provided that it should be located on a line dividing sections 25 and 30 and 26 and ,35 in township 19; that one of the appellees is the engineer of said road, and that the other is the contractor, and that they are opening and improving the road on a line different from that ordered, in this, that they are not constructing it upon the line dividing the sections named, but are constructing it wholly south of the section lines. The third paragraph of the answer, with needless prolixity, sets forth the proceedings before the commissioner, together with much evidence, and alleges that the engineer and viewers, at the time of surveying the line of the road, set stakes along the center of the proposed road, “ and did proceed to construct the same on the line designated by such stakes; that appellant was one of the petitioners for the road; that he was present when the road was located through his premises and during the time the work was in progress, and gave his full consent thereto, and with knowledge of all the facts permitted the work to progress until more than half completed. The answer assumes to plead an estoppel, and it is a familiar rule of pleading, that such a plea must clearly and fully [459] set forth, all. the facts essential tQ the existence of an estoppel, leaving nothing to intendment. Robbins v. Magee, 76 Ind. 381; Lash v. Rendell, 72 Ind. 475. Measured by this rule, the answer is bad. It does not deny the statement of the complaint that the road was being opened entirely south of the line prescribed by the commissioners’ order, and it fails to show, with sufficient certainty, any act. of appellant es-topping him from enjoining appellees from taking part of his land not embraced within the order of the board. It does not aver with that precision which is necessary in such a case as this, that the appellant consented to setting the stakes on a line differentfrom that designated in the order. Had it done this with sufficient particularity, it may be that it would I have been good. As the answer now stands, it simply charges that the appellant consented to the location of the road, and this must be construed to mean not that he consented to setting the stakes, but to the location described in the order. Judgment reversed. Petition for a rehearing overruled.