Small v. Binford

<p>1. Pleading. — Complaint.—Quieting Title. — Allegations.—General. —Specific.—A complaint to quiet title is not sufficient, which alleges plaintiffs’ ownership in general terms, and that defendants have no right to the lands, which allegations are followed by specific statements showing defendant’s claims which are consistent with defendants’ ownership, p. 444.</p> <p>2. Same. — Complaint.—Initial Attack on Appeal. — A complaint stating facts sufficient to liar another action for the same cause, is sufficient, when attacked for the first time on appeal, p. 445.</p> <p>3. Trial. — Jury.—Injunction.—The right of a trial by jury does not exist in suits for injunction, though the trial judge may ask the opinion of the jury as to questions of fact, the -answers being advisory only. p. 445.</p> <p>4. Highways. — User.—Vacation.—A road used by the public for thirty years constitutes a public highway, and it can be vacated only by complete abandonment, or by a proceeding, under the statute (§6759 Burns 1901, §5032 B. S. 1881) for that purpose, p. 445.</p> <p>5. Same. — Abandonment by Constructing New Road. — The construction of a new highway near an old one does not abandon such old highway, especially where such abandonment would prevent egress and ingress by residents who had outlets to such old highway. p. 445.</p> <p>6. Same. — Dedication.—New Way. — Presumptions.—Deviations.—■ The use of a new7 road instead of the old highway, with the consent of the interested parties, constitutes the new way a public highway, dedication being presumed; and subsecjuent deviations because of obstructions do not affect its public character, p. 446.</p> <p>7. Same. — Use.—Amount.—The fact that a way is used by only a few persons does not destroy its character as a public highway, p. 446.</p>