Slike stranica
PDF
ePub

ty and appealed to the circuit court, for the ascertainment of a highway. From a judg-ment for plaintiffs, defendant appeals. Reversed.

Miers & Corr, of Bloomington, for appellant. Joseph E. Henley and Rufus H. East, both of Bloomington, William L. Rude, of Morgantown, and Anderson Percifield, of Nashville, for appellees.

said in Keener v. Union Pac. R. Co. (C. C.) | against Theodore Kruse, commenced before 31 Fed. 126-128: "The term 'right of way' the Board of Commissioners of Brown Counhas a twofold significance. It sometimes is used to mean the mere intangible right to cross; a right of crossing; a right of way. It is often used to otherwise indicate that strip which the railroad company appropriates for its use, and upon which it builds its roadbed." Obviously, the term as here used has the latter significance. Appellant's right of way over the lands described in the pleadings is absolute and permanent and might be made the subject of grant; it is an interest in the real estate over which it passes, and is such a right as in some cases has been held to fall within the term "land." Indianapolis, etc., R. Co. v. Capitol, etc., Co., 24 Ind. App. 114-116, 54 N. E. 1076; Rich v. City of Chicago, 152 Ill. 18, 38 N. E. 255; Appeal of North Beach, etc., R. Co., 32 Cal. Appeal of North Beach, etc., R. Co., 32 Cal. 499-506; Los Angeles, etc., Co. v. Hubbard,

17 Cal. App. 646-650, 121 Pac. 306.

In any event, it is "property" within the meaning of the statute in question, and is subject to assessment thereunder. Judgment affirmed.

(179 Ind. 650)

OF

KRUSE v. KEMP et al. (No. 21,819.) (Supreme Court of Indiana. June 17, 1913.) 1. HIGHWAYS (§ 15*)-ESTABLISHMENT ROAD IN USE-VARIANCE FROM ROAD AS USED. Under Burns' Ann. St. 1908, § 7663, providing that all highways heretofore laid out or used as such for 20 years "shall continue as located," and as of their original width, until changed according to law, and that the board of commissioners shall have power to cause such roads as have been used for 20 years, but not recorded, to be ascertained, described, and entered of record, the board of commissioners cannot enter of record a way varying substantially from that actually used by the public for 20 years or more, for the purpose of eliminating crooks in the way as traveled.

MORRIS, J. This was an action by appellees against appellant, begun before the board of commissioners of Brown county, to have a highway, alleged to have been used as such by the public for more than 20 years, ascertained, described, and entered of record, pursuant to the provisions of section 7663, Burns 1908. From a judgment of the county board, there was an appeal to the circuit court. The cause was then venued to Monroe county, where there was a judgment for appellees.

The only question here presented is the sufficiency of the evidence to support the decision of the trial court.

There was evidence proving that a way between the terminals described in the petition had been used to some extent by a portion, at least, of the traveling public for as much as 65 years, though it is contended by the appellant that there is no evidence to show a public use, within the meaning of the statute. The way used was very crooked, and wound through a hilly country. The route described in the petition is shorter than the way actually used, and makes marked departures therefrom.

[1] There was an evident intention by appellees to have a way entered of record that would eliminate many of the crooks in the way as traveled, in places the way described in the petition varied from the traveled way as much as 40 feet. There were five or six places where there was a variance of more than 18 feet, and the way described in the petition crossed and recrossed the center of the actually traveled way at frequent intervals.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 23, 75; Dec. Dig. § 15.*] 2. HIGHWAYS (§ 15*)-ESTABLISHMENT OF ROAD IN USE-WIDTH-BURDEN OF PROOF. Under Burns' Ann. St. 1908, § 7663, providing that all highways heretofore laid out or used as such for 20 years shall continue as located, "and as of their original width," until changed according to law, that the board of commissioners shall have power to cause such roads as have been used for 20 years, but not recorded, to be ascertained, described, and entered of record, that such action of the board. shall be on petition filed by one or more resident freeholders of the county, and that the board shall declare and establish the width of any such highway, which width shall not be less than 30 feet, the burden is on the petition-1 er for the establishment and recording of a highway used for 20 years to show the width of the way as used.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 23, 75; Dec. Dig. § 15.*]

It is urged by appellant that the commissioners are without power, under the statutory provision here invoked, to describe and enter of record any way that substantially varies from that actually used by the public for 20 years or more. In this contention the appellant must prevail.

N. E. 502, 4 N. E. 11, there was a similar In Strong v. Makeever (1885) 102 Ind. 578, question involved, and it was held that a substantial variance was fatal. The proceeding there was under the act of 1867, which reads as follows: "All public highAppeal from Circuit Court, Monroe Coun- ways which have been or may hereafter be ty; James B. Wilson, Judge. used as such for twenty years or more shall Proceeding by Philip Kemp and others be deemed public highways; and the board

Judgment reversed.

of county commissioners shall have power | unnecessary to consider the sufficiency of the to cause such of the roads used as highways evidence to prove a use by the public. as shall have been laid out but not sufficiently described, and such as have been used for twenty years but not recorded, to be ascertained, described, and entered of record." Acts 1867, p. 133; R. S. 1881, § 5035.

The board

The section under which this proceeding was instituted provides that: "All highways used as such for twenty years or more shall continue as located and as of their original width, respectively, until changed according to law; and hereafter no highway shall be laid out less than thirty feet wide, and the order for the laying out of the same shall specify the width thereof. shall have power to cause such of the roads * as have been used for twenty years, but not recorded, to be ascertained, described and entered of record. And such board shall declare and establish the width of any such highway, which width shall not be less than thirty feet. (Italics ours.) Section 7663, Burns 1908; Acts 1905, p. 521. See, also, Acts 1897, p. 192; section 6762, Burns 1901.

99

The phrase "shall continue as located" was not found in the act of 1867, and its appearance in section 7663, Burns 1908, viewed in the light of the opinion in Strong v. Makeever, supra, forces the conclusion that the act of 1905 adopted this court's construction of the act of 1867, as found in the above

case.

The judgment of the trial court followed the description of the way as found in the the description of the way as found in the petition, and there is no evidence to support it.

Appellees cite Gillespie v. Duling, 41 Ind. App. 217, 83 N. E. 728. The case is not in point, because it turned on the question of dedication, rather than 20 years' user by the public.

[2] There was no evidence to show the width of the way actually used, and appellant contends that this failure of proof is

fatal.

(180 Ind. 287)

KLOTZ V. SCHELLENBERGER et al. (No. 21,838.)1

(Supreme Court of Indiana. June 17, 1913.) APPEAL AND ERROR (8 722*)-ASSIGNMENTS OF ERROR-REQUISITES-NAMES OF PARTIES. Under rule 6 of the Supreme Court (55 N. E. iv), requiring assignments of error to contain the full names of all the parties, an assignment upon appeal from an order of the board of county commissioners establishing a highnamed individuals "et al.," is insufficient, and way, which designates the appellees as three the appeal must be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. 722.*]

Appeal from Circuit Court, Floyd County; William C. Utz, Judge.

Proceeding instituted by Henry Schellenberger and others against Henry Klotz for the location and establishment of a public highway. An appeal from the board of county commissioners was dismissed by the circuit court, and respondents appeal to the Supreme Court. Appeal dismissed.

Ewing & Roose, of New Albany, and Major · W. Funk, of Corydon, for appellants. Zenor & McIntyre, of New Albany, for appellee.

SPENCER, C. J. This was a proceeding and 19 other petitioners to have located and instituted by appellee Henry Schellenberger established a certain public highway in Harand 19 other petitioners to have located and rison county. While their petition was pending before the board of commissioners of said county, appellant and two others filed a remonstrance against the establishing of the proposed road, on the ground that it would not be of public utility. Viewers were appointed to view the proposed road, and reported that it would be a public utility, whereupon the board of commissioners entered its final order establishing the same. On December 8, 1908, six days after said final order was entered, appellant again appeared before the board and presented a remonstrance for damages, and procured the appointment of viewers to assess and report any damages to which they might find him entitled by reason of the location of said road. A report by said viewers in favor of appellant was set aside by the board of commissioners, on motion by the petitioners, and re-viewers were appointed to further investigate the question of damages. This second report materially lessened the amount of damages allowed to appellant, and after the board of commissioners had made a second final order, establishing the highway and ordering the payment of damages as assessed, appellant appealed to the Harrison circuit court, from which court a change of As the judgment must be reversed, it is venue was taken to the Floyd circuit court, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

In McCreery v. Fallis (1904) 162 Ind. 255, 67 N. E. 673, it was held that the burden was on the petitioners to affirmatively show that the defendant's land was not taken. The proceeding there was under the act of The proceeding there was under the act of 1897, supra. The act of 1905, passed a year after the decision in McCreery v. Fallis, supra, contains this added phrase, "shall continue as located and as of their original width." In this respect, at least, the act of 1905 evinces the legislative intent to follow the interpretation of this court in the case last cited; and we therefore hold that, under the act of 1905, where it is sought to record a highway by 20 years' user, the burden is on the petitioner to show the width of the way that was used.

where the appeal was dismissed on motion | ecution involving life or liberty, it would not be of the petitioners. This action of the Floyd an abuse of discretion to refuse such motion in a circuit court is now questioned here.

The assignment of errors is the complaint on appeal, and rule 6 of the rules of this court (55 N. E. iv) requires that such assignment shall contain the full names of all of the parties. In the assignment of errors now before us the parties are thus designated: "Henry Schellenberger, George S. Conrad, William F. Snyder et al., Appellees, v. Henry Klotz, Appellant." This is clearly insufficient, and requires that this appeal be dismissed. Lauster v. Meyers, 170 Ind. 548, 84 N. E. 1087; Barnett v. Bromley Mfg. Co., 149 Ind. 606, 49 N. E. 160; Duncan v. Alderson, 46 Ind. App. 136, 92 N. E. 5. Appeal dismissed.

(179 Ind. 653)

NISWONGER v. STATE. (No. 22,305.) (Supreme Court of Indiana. June 17, 1913.) 1. POISONS (§ 4*)-OFFENSES-SALE OF COCAINE-PERSONS LIABLE.

misdemeanor case where it was not filed for 80 days after judgment.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358; Dec. Dig. § 951.*]

Appeal from Circuit Court, Allen County; E. O. O'Rourke, Judge.

Henry W. Niswonger was convicted of unlawfully selling cocaine and appeals. Affirmed.

John H. Aiken, of Ft. Wayne, for appellant. Thomas M. Honan and Thomas H. Branaman, both of Indianapolis, for the State.

SPENCER, C. J. Appellant was tried by the judge of the Allen circuit court, without a jury, on the charge of having unlawfully sold cocaine, in violation of the act of 1911 pertaining to the sale of drugs. Acts 1911, p. 45. From a judgment of conviction, he prosecutes this appeal.

* * *

The act of the Legislature on which this prosecution is based provides: "That it shall Under Acts 1911, c. 27, making it unlaw- be unlawful for any druggist or any other ful for any druggist or other person to sell co-person to retail, sell, or barter or give away caine except upon written prescription of a duly registered physician, except that it may be sold at wholesale upon the order of a licensed pharmacist, druggist, or physician, etc., a licensed physician who sells cocaine without an order from a licensed physician or druggist, etc., violates the statute.

[Ed. Note. For other cases, see Poisons, Cent. Dig. § 2; Dec. Dig. § 4.*]

2. CRIMINAL LAW (§ 1159*)—APPEAL-FINDINGS-CONCLUSIVENESS.

Where there was some evidence tending to show the essential elements of the offense charged its sufficiency cannot be determined on appeal.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*]

[ocr errors]

3. CRIMINAL LAW (§ 394*) EVIDENCE
MEANS OF PROCURING EVIDENCE.
While it was not wholly commendable to
procure evidence to support a prosecution for
unlawfully selling cocaine by having a police
officer give money to a state's witness to make
the purchase, such course is sometimes per-
missible; though the method of procuring the
evidence may be considered by the jury and
trial court in weighing it.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 875, 876; Dec. Dig. 394.*]

[blocks in formation]

4. CRIMINAL LAW (§ 1144*) — APPEAL — EVIDENCE-PRESUMPTION.

It must be presumed that the trial court considered the matter in which evidence was procured to support a prosecution for illegally selling cocaine-by having a police officer give a state's witness money to buy it; the court or jury being entitled to consider that in weighing

the evidence.

any cocaine,

except upon the written prescription of a duly registered physician, licensed veterinarian, or licensed dentist, except, however, that such

*

cocaine,
may lawfully be sold at
wholesale upon the written order of a li-
censed pharmacist, or licensed druggist, duly
registered practicing physician, licensed vet-
erinarian, or licensed dentist."

Appellant first insists that the court erred
in overruling the motion to quash each count
of the affidavit on which this action was
based. This affidavit is in two counts; but
for the purposes of the question before us
it is necessary only to set out the first count,
which is as follows: "Count 1. Walter H.
Immel, being duly sworn, upon his oath says
that on the 16th day of May, 1912, at the
county of Allen, and the state of Indiana,
Henry W. Niswonger, who was then and
there a druggist, did then and there unlaw-
fully sell to one John Burton at and for the
price of one dollar, one-eighth of an ounce
of cocaine, the said sale not being then and
there made upon the written prescription of
any duly registered physician, licensed vet-
erinarian, or licensed dentist, the said Henry
W. Niswonger having then and
license as a physician and a license as a
pharmacist.”

[1] Without deciding whether appellant has properly presented any question as to [Ed. Note. For other cases, see Criminal the sufficiency of the affidavit, it is apparent Law, Cent. Dig. $$ 2736-2764, 2766-2771, that the offense defined in the statute applies 2774-2781, 2901, 3016-3037; Dec. Dig. to all persons, and if a physician, although 1144.*]

5. CRIMINAL LAW (§ 951*)-NEW TRIAL-Drs-
CRETION OF COURT.
While the permission of accused to file a
supplemental motion for a new trial is a matter
for the trial court's sound discretion in a pros-

duly licensed, commits the act charged in this affidavit he is not excepted from the operation of the law. The statute in question prohibits the sale, barter or giving away of cocaine except under certain conditions,

and it was not intended to exempt licensed [5] Furthermore, in our Code of Criminal physicians from its terms. There is nothing Procedure it is provided (section 2158, Burns in the act which will authorize a physician 1908) that: "The motion for a new trial to operate a drug store and, as such drug-*** must be filed within thirty days gist, to sell cocaine indiscriminately to any from the date of the verdict or finding." one applying therefor without having a writ- While the matter of permitting a defendant ten prescription as required by law. Such to file a supplemental motion for a new trial prescription is a prerequisite to any sale of in a case involving his life or liberty is either of the drugs mentioned in the statute within the sound discretion of the trial and must be retained on file by the person court, as was said in Dennis v. State, 103 making such sale. There was no error in Ind. 142-147, 2 N. E. 349, we are constrained overruling the motion to quash the affidavit. to hold that it would not be an abuse of [2] It is next contended that the circuit such discretion to refuse to entertain such court erred in overruling appellant's motion motion in a case involving a misdemeanor for a new trial. There was some evidence only, where the same was not filed for 80 of the sale as alleged and that it was made days after the rendition of the judgment. without a prescription therefor. Whether Here the circuit court entertained such mosuch testimony carried conviction was a tion and did not err in overruling the same. matter resting exclusively with the court The judgment must be affirmed, and it is which tried the case, and the sufficiency so ordered. thereof cannot be determined here. Freese v. State, 159 Ind. 597-604, 65 N. E. 915.

The remaining assignment is that the court erred in overruling the second or supplemental motion for a new trial. The original motion for a new trial was overruled and the judgment rendered on June 22, 1912. Appellant then prayed an appeal to this court, which was granted, and an appeal bond was regularly filed and approved on said date. The execution of the judgment rendered was thereby stayed, and appellant was given 90 days in which to prepare and file his bill of exceptions. On September 10, 1912, appellant filed his supplemental motion for a new trial, the substance of which motion is that the witness John Burton was given the money with which to purchase the cocaine from appellant by a police officer of the city of Fort Wayne for the purpose of securing evidence against appellant of his violation of the cocaine act, supra. The motion stated that said Burton was intimidated, threatened, and coerced by said police officer and forced to make the purchase of the cocaine for the purpose of making a successful prosecution against appellant.

[3, 4] The record of the evidence introduced at the trial shows that this matter was gone into at that time and was properly presented to the trial court for the purpose of affecting the credibility of the witness. While this method of securing evidence is not to be wholly commended or approved it is sometimes true that the conditions surrounding the commission of crime are such as to make the securing of proper and com

petent evidence as to such act a very difficult task. When evidence is secured in the manner suggested by appellant's supplemental motion for a new trial, the method so employed and the credibility of the witness securing the same may properly be considered by the trial court or jury in seeing that justice is done. It must be presumed that such facts were so considered by the Allen circuit court in the trial of this case.

COX, J., concurs in conclusion.

[merged small][merged small][ocr errors][merged small][merged small][merged small]

Under Burns' Ann. St. 1908, § 6142, permitting two-thirds of the number of landowners named as such, "or who may be affected by any assessment or damaged" by the construction of a drain, to remonstrate, landowners not named in the petition who are affected by the drain are counted as landowners in de termining whether two-thirds have remonstrated, though they merely remain silent and do not remonstrate.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 29, 53; Dec. Dig. § 31.*] 3. DRAINS (§ 31*)-CONSTRUCTION-REMEDIAL

STATUTES.

Burns' Ann. St. 1908, § 6142, permitting two-thirds of the number of landowners named in a petition to establish a drain, or affected by an assessment or damaged, to remonstrate against the drain, is remedial and should be fairly and reasonably construed.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 29, 53; Dec. Dig. § 31.*1 4. DRAINS (§ 36*)-PROCEEDINGS-APPEAL. Proceedings to establish a drain are tried de novo in the circuit court, and an issue cannot be tried there which is not passed upon by the board of commissioners.

[Ed. Note.-For other cases, see Drains, Cent. Dig. $$ 44-50; Dec. Dig. § 36.*1 5. DRAINS ($30*)-PROCEEDINGS TO ESTAB

LISH-NOTICE TO LANDOWNERS.

If notice to a life tenant in whose name land was taxed was sufficient, in proceedings to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

establish a drain, to give jurisdiction to assess ship. Of these individuals 3 were admittedly such land, it was binding on the remaindermen as privies in estate and in law.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 25-28; Dec. Dig. § 30.*]

6. DRAINS (§ 30*)-PROCEEDINGS-SUFFICIENCY OF SERVICE OF NOTICE.

Unless the question of a landowner's residence would affect remonstrators in drainage proceedings, they cannot complain that he was served with notice therein in a county different from his residence; he not complaining of such service.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 25-28; Dec. Dig. § 30.*]

7. DRAINS (§ 36*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

Where the result in drainage proceedings would have been the same if a landowner residing in a certain county had been given notice of the proceedings in that county instead of another county when he was given notice as the resident of another county, in that the number of remonstrators would even then have been insufficient, any error in admitting evidence of his residence was immaterial.

[Ed. Note. For other cases, see Drains, Cent. Dig. §§ 44-50; Dec. Dig. § 36.*]

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Proceeding by William Kirby and others against William H. Rayl and others, to tile a public drain. From a judgment establishing the drain, defendant-remonstrators appeal. Affirmed.

Blacklidge, Wolf & Barnes, of Kokomo, for appellants. Herron & Byers and Harness, Moon & Voorhis, all of Kokomo, for appellees.

On

MYERS, J. Proceeding by appellees for tiling a portion of an open public drain in Howard county, by proceedings before the board of commissioners. On general remonstrance the proceeding was dismissed. appeal to the circuit court the remonstrance was held insufficient, and such proceedings had that the ditch was established, from which order this appeal is prosecuted.

The errors assigned are predicated on exceptions to the conclusions of law on the court's special finding of facts, and in overruling the motion for a new trial, and the question to be determined is the sufficiency of the remonstrance.

nonresidents of Howard county. A fourth person was notified only as a nonresident, as to whom it is claimed that he was in fact a resident, which was a fact disputed on the trial, and he received the notice by mail and made no appearance or objection in the proceeding. Within the 20 days provided by the statute, Burns 1908, § 6142, for remonstrating, a remonstrance was filed containing the names of 12 of the persons, individual owners, named in the petition as affected, 2 being husband and wife. Among these was a life tenant. There were in fact 3 remaindermen residents of Howard county, and the Neither of ditch ran through their land. the three remaindermen were served originally with notice, or appeared to the action. It appears from the record that after the report of the commissioners came in, notice was ordered given to additional parties, and notice is shown to have been given to the trustee of the civil township and the three resident remaindermen. This of course was after trial on the remonstrance. The court found on the trial that 22 persons, and in addition the civil township, were named in the petition as affected by the proceedings, in which number was included the life tenant, but not the remaindermen, and each of the husbands and wives of three instances of tenancies by the entirety, and notice given to each, except that in cases of tenancy by the entirety notice was given the husband only; that 12 of the persons so named, including the life tenant, were residents of Howard county, and signed the remonstrance, 1 of whom was the wife of one of the tenants by the entirety; that 8 of the persons named who were residents of the county did not sign the remonstrance, of which 2 were the wives of tenants by the entirety, the 2 husbands being also counted to make up the 8, and the civil township was also counted to make up the 8, as also was the landowner Boyd, as to whom the question of residence was waged. It was also found that there were 3 remaindermen nonresidents of the county. The court concluded that the remonstrance was insufficient.

It is the position of appellants that husbands and wives, where the real estate is held as tenants by the entirety, can only be counted as one person, and that in case one of the spouses holds other property in his or her individual right, having been counted as one with the spouse, he or she cannot be again counted, or taken into consideration. In view of our conclusions it is unnecessary to determine this question as the judgment must be affirmed independently of that question, on other grounds which eliminate the question.

The petition was signed by four persons: Two Kirbys, husband and wife, who owned one tract of land affected as tenants by the entirety, and the husband owned a tract in his individual name; one signer was in fact the township trustee, but signed as an individual, though he had personally no interest; the fourth person was an individual owner. The persons named in the petition as owners of land were 22 in number, including in three instances husbands and wives owning as tenants by. the entirety, the two Kirbys being thus included, and in addition civil Clay township; that is, there were 22 persons named, 6 of whom were husbands and wives, and in addition the civil town

[1] It is next urged by appellant that "persons not named in the petition or remonstrance cannot be counted even though they may be affected by the proceedings." This

« PrethodnaNastavi »