Kissinger v. Hanselman

33 Ind. 80

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Frazer, J.

We are of opinion that the road, in question was a public highway, and, consequently, that the- questions most pressed for the appellant are not in the case. "We cannot assent to the position assumed by the Supreme Court of Missouri, in Dickey v. Tennison, 27 Mo. 373, that a neighborhood road is-only a private road. If that be so, then half the highways in Indiana are of that class — void in their inception, if, as the appellant contends,.the right. oE •eminent domain cannot be exercised to take land for them; ■and not in any respect under the jurisdiction of the local authorities, nor to be opened or kept in repair by the public. /

C. Denby, D. B. Kumler, and J. G. Jones, for appellant. A. Iglehart and R. A. Hill, for appellee.

The commissioners’ record need not contain the evidence 1 by which it was proved that the proper notice had been given of the intention to present the petition for the highway; it is enough that it should appear by the record that •the fact was proved, and it need not be shown how it was proved.

Whether the decree of injunction was erroneous is not a question in the record, not having been saved by an objection and exception below. Stretch v. Schenck, 23 Ind. 77.

Affirmed, with costs.