Kitchen v. Sheets

1 Smith & H. 27

• Court: Indiana Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

Blackford, J.

— “ A person may have a division of two tract's of land by means of one suit, if the owners of both tracts are the same. But it is otherwise where the two tracts are not owned by the same persons.

“ There is another objection to the decree. The report of the commissioners states, that as the lands adjoined the cily of .Madison and were suitable for town lots, they had laid off the lands into town lots with various streets and alleys, as show'll by n plat annexed to the report. The plat designates the lots, and also several streets and alleys,running through the land in different directions. Home of the streets are fifty nine feet and others sixty feet wide. The alleys are from ten to fourteen feet wide. It thus appears that a considerable part of the lands which were to have been divided, have been given by the decree to the public for streets and alleys.

“ The section of the statute respecting the partition of lands, under which the partition in this case was made, is as follows: ‘ The said Courts are hereby empowered to cause partition to be made, by setting off the share or shares of those who desire the same to be done, whether petitioners or defendants, and the residue of the premises shall remain for the person or persons entitled thereto, subject to a future partition among them, if there be more than one person so entitled.’ — R. S. pp. 812 — 818.

“ It is plain that the Court, acting under this section of the statute, committed an error in making a decree which gives a part of the lands in question to the public for highways, without the defendants’ consent.”

Decree reversed, &c.