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of February, 1894, the board of trustees of the town of Crownpoint met in regular session at the town hall, with all members present, and ordained that the public street and highway extending from Jackson to Goldsborough street be named and known as "Railroad Street," and declaring an emergency. The court further finds: That what is termed "Railroad Street" in said ordinance is the strip of land or highway in this case, and that the same now is, and for more than 25 years last past has been, within the limits of the said town of Crownpoint. That on February 12, 1894, the board of trustees of said town met in special session,-all members being present, and by a two-thirds vote passed an ordinance for the grading and paving with cedar posts, to the width of 21 feet, numerous other streets, and also Railroad street from Jackson to Goldsborough, and declaring such improvement necessary; that the cost thereof be assessed and collected according to the provisions of the act of March 8, 1889; that said improvement should be made under the supervision and to the satisfaction of the board of trustees and the civil engineer of said town, and in accordance with the plans and specifications on file in the office of the town clerk; ordering said clerk to give 10 days' notice of the passage of said ordinance to property owners along the line, and to reduce any objection to the necessity for the construction to writing, and file same with said clerk by 7 o'clock p. m. on March 26, 1894; providing that said clerk shall advertise for three successive weeks that sealed proposals, with bond, will be received up to 1 o'clock p. m. of May 1, 1894, and will be opened and passed upon at a special meeting held May 5, 1894; ordering the civil engineer of said town to set proper grade stakes, prepare profile showing correct grades, excavation, location, depth, and size of drains, etc.; and declaring an emergency. The court further finds: That said clerk and civil engineer, in accordance with the requirements of said order, did the things therein required of them in the manner so directed. That on April 2, 1894, said board of trustees met in regular session, with all members present, and it being shown to their satisfaction that said clerk had given the required notice to property owners to reduce their objections to writing and file the same on or before 7 o'clock p. m. of March 26, 1894, and no such objections having been filed, said board was still of opinion that public necessity required such improvement. On May 5, 1894, said board met in regular session, with all members present, and it appearing to their satisfaction that the required notice had been given for bids for the construction of said work, the propositions of various bidders were received and considered; and appellee Garden City Paving & Post Company making the lowest and best bid, in proper form, and being accompanied by the proper

bond, same was accepted, and said company ordered to enter into a contract with said town in 15 days from said date, which contract was made and entered into by said board, in special session, with all members present, on May 15, 1894, at the price of $1.40 per square yard, which contract was in writing, and signed by both parties. On August 29, 1894, said board met in special session, with two of their members present, and the town engineer filed his final report and estimate of the cost of the pavement of Railroad street, as theretofore ordered; and, it appearing that the work on said street was complete, it was accepted by said board, and said estimate was referred to a committee on streets and alleys, which committee was ordered to meet at the town hall of said town at 7 o'clock p. m., September 14, 1894, to consider the same. Said town clerk was ordered to give the proper notice of the meeting of said committee at said time, where a hearing could be had, which said notice was duly given. That at said meeting, at said time and place aforesaid, the appellant came, and filed its written objections to the assessments made against it. On September 24, 1894, said board met in special session, all members being present; and said committee on streets and alleys aforesaid made their report, wherein they found that after hearing all objections and recommendations, and viewing said improvement, and said estimate and report of said engineer being correct in every respect, they recommended its adoption and confirmation; all of which was done by said board of trustees, and said report was confirmed and approved; and it was further ordered by said board that the amounts stated in said final estimate be assessed against the several lots and parcels of land described therein, for and on account of said improvement, and how the same should be paid and collected.

One proposition relied upon by the appellant is that, having appropriated land to its right of way and station grounds, no power existed to take, by direct proceeding, any part thereof, laterally, for a street or publie highway, and that, therefore, no right existed to take the same indirectly, as by user or estoppel. It is not doubted that lands appropriated to one public use are not, in the absence of special authority, subject to condemnation for another and inconsistent public use. This case, however, presents no question at variance with this doctrine. The question here is, can a railroad company, holding property for the uses of a railway, part with the same for another public use? That it may do so by express grant is not doubted. That the doctrine urged is for the protection of the holder of the first public use is certain. That the railroad company may waive this protection seems equally certain, and, if it may, just why the company is not bound by the principles of waiver and estoppel, under which

the individual may surrender his lands to the easement of a street or highway arising from adverse user, it is difficult to see. That one public use may be lost by user or dedication to another has been directly decided. Board v. Huff, 91 Ind. 333; Easley v. Railway Co., 113 Mo. 236, 20 S. W. 1073; Turner v. Railroad Co., 145 Mass. 433, 14 N. E. 627. It is insisted, also, that a street or public highway cannot be established by prescription in an incorporated town or city; citing Tucker v. Conrad, 103 Ind. 349, 2 N. E. 803; Shellhouse v. State, 110 Ind. 509, 11 N. E. 484; Elliott, Roads & S. p. 138. These authorities have reference to the application of the statute (section 5035, Rev. St. 1881; section 6762, Burns' Rev. St. 1894) which provides that a way used for 20 years as a highway shall be deemed a public highway, and the county commissioners may cause it to be described and recorded. The application of this statute to cities and towns is not indispensable to the conclusion that ways used as streets for 20 years may become public streets from such use. There is confusion in the cases, from treating the question of such use in some instances as constituting | a way by prescription, and in others as by dedication or by condemnation. Strictly speaking, the doctrine of prescription does not apply to the acquirement of highways. That doctrine has as its foundation the presumption of a grant from the adverse user, and, when applicable, must involve parties capable of making and receiving grants. Where doubts have been expressed as to the application of the doctrine to streets or highways, independently of statute, it has been from the conclusion that the inhabitants of a municipality-those whose use was set up as constituting the right-could not occupy the position of a grantee, as in the case of an individual, whose use of a private way may be asserted to constitute an easement by prescription. However, we have no doubt that, strictly speaking, the user, in the case of a street or highway, which, as between individuals, would constitute an easement by prescription, is evidence of a dedication or of a condemnation. In other words, that which is a prescriptive right, as between those capable of granting and receiving title, is, as between the fee owner and the public, sufficient to raise the presumption of a dedication or a condemnation. In Ang. & D. Highw. (3d Ed.) p. 142, it is said: "Prescription,' in its more general acceptation, is defined to be 'a title acquired by possession had during the time and in the manner fixed by law.' It is also said that 'a prescription by immemorial usage can, in general, only be for things which may be created by grant; for the law allows prescription only to supply the loss of a grant.' Now, inasmuch as the public cannot take by grant, prescription, in its strict sense, has no application to highways. the law now exists in this state,' says Sena

'As

tor Furman in Post v. Pearsall, 22 Wend. 444, 'and as it has, in substance, existed ever since the formation of our constitution, the only way that an individual can acquire a right in real estate is by grant, or by an adverse possession of twenty years under a claim of title, in which case the law presumes a grant; and, as to the public, the only way in which they can, at the common law, acquire an easement in the lands of another, is by dedication.'" After referring to cases applying the doctrine of prescription to highways, the author continues: "But, more properly speaking, such use, unless by virtue of some statute, is but a fact from which a dedication to the public may be presumed." In Reed v. Northfield, 13 Pick. 94, Shaw, C. J., speaking for the court, said: "We think it clear, upon principle, that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment that they were at some anterior period laid out and established by competent authority." See, also, Pratt, Highw. p. 36; Tied. Real Prop. § 599, and authorities there cited. Judge Elliott, in his Roads and Streets (page 133), applies the doctrine of prescriptions to roads and streets, but concedes the doubt of its strict applicability. He denies that the presumption at the foundation of the doctrine is of a grant, when applied to highways, and insists that the presumption is that the way has been "laid out and opened by competent authority." The difference seems to exist in the presumptions to be drawn from the application of the rule to public highways, and not upon the conclusion that the facts which constitute, as to private easements, a way by prescription, are accepted in favor of the public, and as precluding the owner of the fee from denying the continued use of the way as constituting a public street or highway. We are to look, therefore, to the facts found, to determine whether they authorized a legal conclusion in favor of the appellee, on the presumption of a dedication or condemnation. By adverse use, alone, the period, it is conceded, must be 20 years; but, it is also conceded, a dedication may be presumed from circumstances continuing for a much shorter period. There is no disagreement as to the elements constituting adverse user, that it must be by conduct clearly indicating a claim of right; that it must be exclusive; that it must be continuous, with the knowledge of the owner, and without interruption from him. A common-law dedication, or the presumption in favor of dedication or condemnation, operated by way of estoppel in pais. Elliott, Roads & S. p. 87; Dill. Mun. Corp. § 628; City of Cincinnati v. White, 6 Pet. 431; Paust v. City of Huntington, 91 Ind. 493. There is here no claim to an express dedication, and the facts are to be viewed with reference to an implied intention to dedicate. Of the question of in

tention, Judge Elliott says (Elliott, Roads & S. p. 92): "The intent which the law means is not a secret one, but is that which is expressed in the visible conduct and open acts of the owner. The public, as well as individuals, have the right to rely on the conduct of the owner, as an indication of his intent. If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. Regard

is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose. If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to the public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate, no matter what may have been his secret intent." See. also, Railway Co. v. Noftsger, 148 Ind. 101, 47 N. E. 332. On page 95 of the same work it will be seen that the negligence of the owner, having the same effect, is sufficient to work the estoppel supporting the presumed dedication.

The question of an acceptance by the public of the way has been discussed with reference to its influence upon the conclusion that a dedication will be presumed. Whether that question is of importance, except to determine the duty of the corporation to repair, is of no consequence, since, if essential to a complete dedication, there can be no doubt, upon the findings, of an acceptance. The findings show, unmistakably, an uninterrupted use by the public, for 30 years, of a well-defined way, of 30 feet in width, connecting Goldsborough and Jackson streets, through and over the appellant's land. The way was defined by ditching and grading. It was accepted and recognized as a public way, not only by the 30 years of constant travel, but by the action of the town authorities in grading, ditching, and caring for the same, twice each year, in the manner of caring for the streets of said town. It was so far regarded by the citizens and property owners as a public street that residences and business houses were constructed upon Goldsborough and Jackson streets, which streets, but for the way in question, would have had no outlet at the northern terminus of either; and for 30 years a livery stable was maintained upon lots adjacent to appellant's land, with its entrance upon the way in question. The use of said way, the grading, ditching, and care of the same, the construction of buildings with reference to such way, and its use as a public street, were with never an objection or question from the appellant.

Counsel for appellant insist that inasmuch as the way was used also by persons having business at the depot, and by the employés of the company operating the railway, in going to and returning from their employment, the use of the public, disconnected from the use for railway purposes, was not exclusive. It seems to push the rule of exclusive use too far to require that the owner of the fee may have no part in the use, to sustain a dedication or a way by prescription. The case of Pennsylvania Co. v. Plotz, 125 Ind. 26, 24 N. E. 343, cited by counsel, holds that "one who devotes a portion of his land for use as a way for travel for his own convenience and accommodation will not be deemed to have dediIcated it to the public simply because the public also use the way with the landowners' permission." Permission certainly means more than acquiescence; for, to sustain prescription, it must appear "that the owner acquiesced in such use." Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669, and authorities there cited. One of the strongest evidences supporting an implied dedication is that the owner constructed the road for the use of the public. If concurrence in the use would defeat dedication, it would seem, also, that the more useful the way to the fee owner, and the more extensive his use of it, the less certain an intention to dedicate; and having constructed the road that it might be more useful would be strong evidence that he did not intend to dedicate it to the public. Any use of the way here in controversy by the appellant was not antagonistic to the public use claimed, but was of the same character, and consistent with it. When we get back to the primary question, in determining whether a way has become a public road or street by dedication, we must ascertain the intention of the owner. То ascertain that intention, we look to his acts and his omissions, and their effect upon those who have relied upon them. As long as the public maintained a graded and welldrained way over the appellant's ground, supplying a good street for those who might go to the depot on business with the company, the appellant was willing to quietly accept the labor and expense bestowed; but after 30 years of such benefits, bestowed in the belief that the way was a public street, would it not constitute a wrong to permit the appellant to deny that the way was such public street? Does the fact that such company enjoyed the benefits of the improved way affect the conclusion that there was an intention to dedicate? These questions suggest their own answers.

It was urged, also, that it was not found that the adverse use was while the owner was free from disabilities, and in a position to resist such use. Disabilities are not, in the first instance, presumed; and the appellant instituted this suit to enjoin public officers from performing official acts,-such

Street," extending from Jackson street to Goldsborough street. Prior to the passage

acts always being favored with the primary in question was described as "Railroad presumption of regularity and legal support. In the absence, therefore, of any finding on the subject, presumptions would be indulged against the appellant. See Faust v. City of Huntington, 91 Ind. 493.

Nor do we observe any force in the proposition that the evidence showed that during a part of the period of adverse user the owner of the land was out of possession, and the railway was operated by a tenant under a lease for 99 years. Such a tenancy can certainly be no bar to an acquirement by the public of an easement by implied dedication. It could not preclude a condemnation, and certainly would not repel the presumption of an ancient dedication.

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By supplemental complaint it was shown that the proposed paving had been completed, and it was sought to enjoin the collection of the assessment against the appellant. This constituted a collateral attack upon the proceedings of the board of trustees, and, under the well-established rule, can maintained only by the affirmative disclosure of some act or omission rendering the assessment invalid for the want of jurisdiction, and it cannot be sustained for any mere irregularity in the proceedings. McEneney v. Town of Sullivan, 125 Ind. 407, 25 N. E. 540; De Puy v. City of Wabash, 133 Ind. 336, 32 N. E. 1016; Robinson v. City of Valparaiso, 136 Ind. 616, 36 N. E. 644; City of Indianapolis v. Consumers' Gas-Trust Co., 140 Ind. 246, 39 N. E. 943; Kizer v. Town of Winchester, 141 Ind. 694, 40 N. E. 265. The infirmity in such case must be disclosed by the record. De Puy v. City of Wabash, supra; Shoemaker v. Spark-Arrester Co., 135 Ind. 471, 35 N. E. 280; Bailey v. Rinker, 146 Ind. 130, 45 N. E. 38; Thompson v. Harlow (Ind. Sup.) 50 N. E. 474.

One objection urged against the proceedings of the board is that they do not appear to have been had upon petition by property owners. Petition is not indispensable, as such improvements are authorized, upon a vote of two-thirds of the membership of the board, without a petition. McEneney v. Town of Sullivan, supra; De Puy v. City of Wabash, supra.

It is further objected that the recital in the ordinance directing the improvement that the same was passed by a two-thirds vote of the board was not evidence of the fact of such vote, and was an insufficient record of the fact. It has been decided that such a recital amounts to a finding upon the question, and that such finding is conclusive. City of Indianapolis v. Consumers' GasTrust Co., supra, and authorities cited. See, also, Balfe v. Lammers, 109 Ind. 347, 10 N. E. 92, where it is held that the question as to whether the yeas and nays were taken can only be made by appeal or direct attack.

The ordinance directing the improvement included several streets, and the street here

of said ordinance another ordinance had been passed, declaring that the street or way extending from Jackson street to Goldsborough street be named and known as "Railroad Street." No other street extended from one of the named streets to the other. The findings and evidence particularly locate and describe this street. It is now urged that in the proceedings for the improvement of Railroad street there was no means of knowledge by property owners or bidders of the proposed improvement. The general description, under the circumstances, was sufficient.

Other questions as to the letting of the contract-that the price at which it was let was so much per square yard, and that the letting was in connection with other streets, etc.-have been urged. All of these we regard as not presenting any question going to the validity of the action of the board, and, at most, but irregularities, subject only to direct attack.

It is insisted, also, that the evidence, in numerous respects, does not sustain the findings of the court. We have examined the evidence, and are of the opinion that it fairly supports each finding questioned. No error appearing upon the record, the judgment is affirmed.

ZUMPFE v. KELLEY et al. (Supreme Court of Indiana. June 9, 1898.) FORECLOSURE OF CHATTEL MORTGAGE-CROSS COMPLAINT.

A cross complaint, in an action to foreclose a chattel mortgage, claiming the property by virtue of a prior mortgage, is insufficient, where it does not allege that the property conveyed in both mortgages is the same.

Appeal from circuit court, Wayne county; H. E. Fox, Judge.

Action by William A. Zumpfe against Michael Kelley and others. From a judgment overruling a demurrer to a portion of the answer of the Jung Brewing Company, in the nature of a cross complaint, plaintiff appeals. Reversed, with instructions. C. E. Averill, for appellant. Whitesell, for appellees.

Samuel C.

HOWARD, C. J. This was an action by appellant for the collection of the amount due on certain promissory notes given by the appellee Michael Kelley, and to foreclose a chattel mortgage given by him to secure said notes. To appellant's complaint, the appellee the Jung Brewing Company filed several paragraphs of answer and cross complaint. The fourth of those paragraphs was in the nature of a cross complaint, and to this the court overruled a demurrer. In this paragraph the appellee brewing company

set up a chattel mortgage given by the appellee John Kelley to the appellee Caldwell upon certain property therein described. It is alleged that this property was afterwards transferred by John Kelley to Michael Kelley, subject to said mortgage, that subsequently Caldwell assigned said mortgage to the brewing company, and that Michael Kelley, being unable to comply with the terms of the mortgage, transferred and delivered the mortgaged property to the company. The prayer is that the title of the brewing company to the property described in this mortgage be quieted. The court found for the appellant on his promissory notes, and for the brewing company on the mortgage set up in its paragraph of cross complaint. We think it was error to overrule the demurrer to the paragraph of cross complaint. It nowhere appears in this pleading that the property there described is the same as that described in appellant's mortgage. Indeed, it does appear that the property covered by the company's mortgage is located at No. 35 North Eighth street, in the city of Richmond, while that covered by the appellant's mortgage is located at No. 39 North Eighth street, in said city. In the absence of any allegation in the paragraph of cross complaint to show that the property there described is the same as that mentioned in appellant's complaint, no reason appears why the demurrer should not have been sustained, or even why the paragraph should not have been stricken out on motion. The paragraph of so-called cross complaint bore no relation whatever to the complaint, and, even if all its allegations were true, it could not constitute any answer or counterclaim to appellant's cause of action. A like infirmity is shown in appellees' evidence, and it does not there appear that the property covered by the mortgage set up in the cross complaint is the same as that set up in the complaint. Indeed, the question being directly asked of counsel for the company, while he was on the witness stand, whether the property covered by the company's mortgage was the same as that covered by appellant's mortgage, he replied: "I don't know. I can't tell you." It may be that the property is the same, but the record does not show it. In truth, the record exhibits a state of confusion that can only be remedied by returning the case to the trial court. The judgment is reversed, with instructions to sustain the demurrer to paragraph marked 4 of answer and cross complaint, and with leave to amend all pleadings, or to file new pleadings.

NUTTER et al. v. HENDRICKS et al. (Supreme Court of Indiana. June 7, 1898.) ACTION OF EJECTMENT-WHAT CONSTITUTESSECOND TRIAL-WHEN GRANTED.

1. Under Rev. St. 1894, § 1066 (Horner's Rev. St. 1897, § 1054), providing that a com

plaint in ejectment shall state that plaintiff is in possession, particularly describing the premises and the interest he claims therein, and that defendant unlawfully keeps him out of possession, a cause of action which omits allegations of plaintiff's right to possession, and that defendant unlawfully keeps him out of it, is not an action to recover possession.

2. Where a complaint embraces two causes of action, only one of which is an action to recover possession of real estate, a second trial as of right, under Rev. St. 1894, §§ 1076, 1077 (Horner's Rev. St. 1897, §§ 1064, 1065), providing that it shall be granted on application made within one year after judgment in ejectment, will not be granted.

Appeal from circuit court, Morgan county; George L. Reinhard, Special Judge.

Action by Isaac W. Nutter and others against Walter E. Hendricks and others. There was a judgment for defendants, and plaintiffs appealed. Affirmed.

W. R. Harrison, John C. Robinson, and W. S. Shirley, for appellants. C. G. Renner and Oscar Mathews, for appellees.

MCCABE, J. The appellants sued the appellees in a complaint of two paragraphs. A trial of the issues by the court without a jury resulted in a finding and judgment for the defendants on the first paragraph of the complaint, and for the plaintiffs for $100 damages on the second paragraph. The circuit court overruled appellants' motion for a new trial as of right, under the statute (Rev. St. 1894, § 1077; Rev. St. 1881, § 1065; Horner's Rev. St. 1897, § 1065). Error is assigned on that ruling only. The first paragraph of the complaint, being for the recov ery of the possession of real estate, would in the absence of any other paragraph, entitle the plaintiff's to a new trial as a matter of right, without cause under the statute cited. And so, if the second paragraph was for the recovery of said possession or to quiet title, then the whole case made by the whole complaint would be one where a new trial, as a matter of right, was demandable. Rev. St. 1894, § 1082 (Rev. St. 1881, § 1070; Horner's Rev. St. 1897, § 1070). It is contended by appellants that the second paragraph was also to recover possession of the same real estate, and to quiet their title therein. The paragraph was sufficient as a pragraph for trespass, damage, and for an injunction, but it was evidently never intended by the pleader as a paragraph to either recover possession or to quiet appellants' title. The first paragraph covered all that ground, and both paragraphs had reference to the same real estate. The second paragraph did not allege that the plaintiffs were entitled to the possession of the premises described, nor that the defendants unlawfully keep them out of possession. The statute requires these two allegations to be made in the complaint for possession, without either of which it is fatally defective. Rev. St. 1894, § 1066 (Rev. St. 1881, 1054; Horner's Rev. St. 1897, §

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