The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-12
THE RECORD OF THE COURTS
Supreme Court-March II.
Hon. Geo. V. Howk, Chief Justice.

UNCERTAIN PLEADING-LOsT wRITINGs-PRooF.
11O96. Johnston Harvester Company VS.. John ).
Howk, c. J.-Where the objection to a complaint is
not the omission of any material fact but detective
or imperfect statements of facts the remedy IS a
motion to make the statements more certain and
Ind, 273; 70 i'd 4S7; SO i'd, 42l) The loss of
written Instruments in order to admit parol evil
denee Of their contents is to be established by fair
preponderauce Of the evidence like any other fact al
legedin the complaint. go Ind, 3lO). Judgment
affirmed.
NEUTRALITY-SUSPICIOUS. POsSEsSION-CosTs.
1O963. Thos. II. B. Teeple vs.. Geo. W. Dickey.
Fulton, c. c.
Hammond, jim order to maintain an action OF
repevf1 the evidence must show that the defendant
was ia possession of the property at the time suit vas
brought. But constructive possession by the
defendant is sufficient rs Ind. 449; 81 i'd,
75). Where the defendant was in
lawful possession when suit brought, and the
suit was dismissed for want Of sufficient bond and
the justice rendered judgment for the return Of the
property to the defendant t having been taken by h,
plaintiff upon writ such judgement placed the prop
cry cons trucyey IN the possession OF the defendant
and the plaintiff could bring new suit without FIRST
restoring the actual possession of the property to the
defendant Appellant complains of the taxing OF the
costs of certain witnesses to him. but the record does
not show that the costs taxed that in fact
the witnesses claimed any fees. party who com
plains OF ruling must atirmativey show that ie was
in some way harmed thereby. judgment affirmed
NEUTRALITY-SUSPICIOUS. TO FENCE TRACK
NJ. Clark. Floyd G. G.
collars, IA railroad company is liable for stock
killed where its road is not, but might
be fenced, without reference to controutory
negligence on the part of the plaintiff (6S Ind 291;
81 id, 523) For aught that appears from the evil
dence the company might have maintained fence at
the place where the plaintiffs horse went upon the
track The burden on it to show that it was not
required to do This it failed to do. (4s Ind,
ESQ 80 i'd, 324i IS i'd, 400 Judgment affirmed.
PUBLIC WAY - VACATION - RIGHT TO ERECT
BRIDGES.
1856. David L. Kyle VS.. Commissioners Of Kos
ciusko county. kosciusko G. G.
Elliott IA road used as public highway for
twenty years vests right in the public OF which the
owner Of the fee cannot divest them. Where right
to public way acquired by express implied dedi
cation, by prescription. and the way leads to q
stream which requires bridge the right to erect
is implicitly vested in the public. Vacations Of high
ways not favored, and the presumption will
always be in favor of their continuance ~ AID. E.
6Sl; 10 b. & c., AT; Tenant, OBI The Fights
of the public in the way only be Invested by pro-
eeedngs authorized by law. But where it is shown
that the provisions of the statute for vacatng the
highway substantially complied with, the owner
of the fee becomes renvested with absolute right OF
dominion, and unauthorized entry the land
formerly occupied as highway will constitute cause
of action. Where order and judgment Of vacation
have been made and recorded, the authority OF the
commissioners is exhausted and they have right TO
change vacate ignore it. (6l Ind, 70; ~ id,
22li IS i'd, 1897 An injunction will not be granted
to restrain the commission Of simple trespass but
injunction will lie where the entry on land IS under
a claim of right which might, by lapse Of time grow
into a title. @ Sumner, lS9; rs Ind, go : story
Eq 921) The reply must be held good. Judgment
rev sod