Curless v. State

Monks, J. Appellant was convicted on a charge of maintaining a public nuisance by the obstruction of a public highway. The only error assigned is that the court erred in overruling appellant’s motion for a new trial. It appears from the record that in 1903 appellant and others filed a petition before the Board of Commissioners of the County of Howard to vacate a public highway running across the land of appellant, and establish the same on the half-section line dividing his land and Hie land of one Downs. Such proceedings were had that said old highway was va [259] eated, and a highway thirty feet wide established, one-half on each side of said half-section line. At the time said highway was established, there was, and had' been for more than ten years, a partition fence dividing said land of appellant from the land of said Downs. In executing the order establishing said highway, the highway officer assumed that said partition fence was on said half-section line, and opened said highway thirty feet wide, fifteen feet on each side of said line, as shown by said fence, and appellant and Downs each set his fence on his own land back at least fifteen feet from said partition fence, as required by said order. Appellant was present when his employes set his-fence back. After the fences were set back, the road supervisor, in the fall of 1904, cut down some banks, blew out stumps, filled up the holes in said highway, and did some other work to make the road passable for travel, and the same was opened for travel and used by the public. In 1907 appellant built a fence which encroached upon the highway seven or eight feet on the south side, and crossed the side ditch made by said officer in the highway on the south side thereof. This is the obstruction of the public highway alleged in the affidavit in this case. Appellant’s defense, as stated by his counsel, was “that the highway was not opened on the line where the same was established ; that if said highway had been opened on the half-section line where established said fence would not encroach upon or be within the limits of the highway; that therefore appellant was not guilty of obstructing said highway. ’ ’ 1. It does not follow from the order establishing said highway that the same was laid out by the viewers and established by the board of county commissioners on the half-section line, if the same was not the line dividing the lands of appellant from the lands of Downs. Section 6743 Burns 1901, Acts 1899, p. 116, provides “that where the road is laid out upon the line dividing the lands of two individuals, each shall give one-half of the road,” [260] 2. The petition, report of the viewers, and the procedings and entries in said cause, when read in the light of the statute, the location of said partition fence, and the other circumstances of the case, show that the viewers laid out and located said highway on the line dividing the land of appellant from the land of Downs, whether the same was on the half-section line or not. 3. It is settled that parties, by acquiescing in boundary lines . for twenty years, or by conduct fixing such lines, may be estopped from averring that they are not the true lines. Cleveland v. Obenchain (1886), 107 Ind. 591, 592, and cases cited; Wingler v. Simpson (1884), 93 Ind. 201, 203, 204, and cases cited; Brown v. Anderson (1883), 90 Ind. 93, 99; Main v. Killinger (1883), 90 Ind. 165, 167, and cases cited. If by continuous adverse possession, or otherwise, said Downs had title to said land to the line marked by said partition fence, then there was no mistake on the part of the road officer in opening said highway, one-half on each side of said line, without reference to where the true half-section line might be. 4. Whether said Downs has title to the land marked by said partition fence by twenty years’ continuous adverse possession or otherwise, and whether the same is the true half-section line, cannot be tried in this case. Persons, whose lands abut upon a public highway established, as the highway in this case was, by a proceeding brought for that purpose, after the highway is opened under such order by the proper authority, and they have set back their fences, and the road as opened has been worked and used by the public, cannot successfully defend a charge of obstructing the same, by showing that the highway was, by mistake or otherwise, not opened upon the proper line. Holden v. Cole (1845), 1 Pa. St. 303, 307; Furniss v. Furniss (1857), 29 Pa. St. 15; McMurtrie v. Stewart (1853), 21 Pa. St. 322, 325; Van Buskirk v. Dawley (1879), 91 Pa. St. 423, 427; Morrow v. Commonwealth (1864), 48 Pa. St. 305, 307, 308; [261] Schuylkill County’s Appeal (1861), 38 Pa. St. 459, 463; Clark v. Commonwealth (1859), 33 Pa. St. 112; Commonwealth v. Dicken (1891), 145 Pa. St. 453, 456, 22 Atl. 1043; Hancock v. Borough of Wyoming (1892), 148 Pa. St. 635, 638, 24 Atl. 88; Gray v. North Versailles Tp. (1904), 208 Pa. St. 77, 79-81, 57 Atl. 190; Commonwealth v. Jackson (1899), 10 Super. Ct. (Pa.) 524; Commonwealth v. Plymouth Tp. (1902), 19 Super. Ct. (Pa.) 408; Bieber v. Kutztown Borough (1905), 27 Super. Ct. (Pa.) 436, 441. 5. If appellant wished to make the question that by mistake or otherwise the highway, as opened and worked by the highway officer and as used by the public, was not upon the proper line, he should pursue the proper legal remedy for the correction of the mistake, if any was made. In Commonwealth v. Dicken, supra, where the defendant was charged with obstructing a public highway, it was said in the syllabus: ‘ ‘ On an indictment for a public, nuisance, in maintaining a fence upon a public highway, the defense that the highway, as actually opened and traveled, was not upon the location made by the report of the viewers confirmed by the court of quarter sessions, and that by such report the fence was upon the defendant’s own land, is inadmissible.” The court said on page 456: ‘ ‘ The trouble probably arises from the fact that the road on the ground, the visibly traveled road, does not conform in all respects to the road as shown upon the plan as returned by the jury appointed to straighten it. Ilis contention may be true, that the supervisor had not followed the plan accurately, and that the road ought to be somewhere else. But we cannot decide such a question in this proceeding. If it was not properly located, there is an orderly way to have any such error corrected. But the traveled road, as laid out by the township authorities, cannot be interfered with by placing an obstruction thereon. The inconveniences to the public b^ permitting such a.course are obvious.” [262] 6. [261] Appellant offered to prove by the county surveyor, “that [262] in 1905, after said highway was opened, and the public had used the same, he made a survey, locating said half-section line, and set proper corner-stones,” and offered in evidence the record of said survey, and also offered to prove by another competent witness, “that if said highway had been opened on the half-section line, as ascertained by said survey, said fence built by him would not be within the limits' of saifr highway.” The court excluded said evidence. Said survey was made at the request of appellant, and there was nothing to show, nor was there any offer to prove, that Downs, the adjoining land owner, had any notice of said survey, nor that he was present and consented to such survey, nor that he consented in writing thereto, as required by §§9512, 9513 Burns 1908, §§5950, 5951 R. S. 1881. Said survey and the record thereof were not made as required by the statute, and did not bind Downs, the adjoining landowner, nor the public, and were properly excluded for this reason, if for no other. 4. Said evidence was also properly excluded because such a defense, as we have shown, was inadmissible in this case. Hawkins v. Stanford (1894), 138 Ind. 267, and Phipps v. State (1845), 7 Blackf. 512, cited by appellant, are not in point here. Complaint is made by appellant of instructions given by the court, and of the refusal to give instructions requested by him. 7. The Attorney-General insists that no question concerning instructions given or refused is presented by the record, because they are incorporated in the original bill of exceptions containing the evidence, and that embracing such original bill of exceptions in the transcript, as was done in this case, does not make them a part of the record here. The contention of the Attorney-General is sustained by Williams v. State (1908), 170 Ind. 644. Finding no available error, the judgment is affirmed.