
    Timmons v. Switzer and Others.
    APPEAL from the Tippecanoe Court of Common Pleas.
    
      Thursday, December 16.
   Per Curiam.

The complaint in this case, alleges that the appellees, who were the defendants, unlawfully, &c., entered upon certain land, of which Timmons was the owner, and tore away and destroyed his fences, &c.

The defendants’ answer admits their entry upon the land, but alleges, in justification thereof, that the same land upon which they did enter was a public highway; that Switzer was the proper supervisor, &c., and the fence mentioned in the complaint being in said highway, and Timmons having failed, after due notice, &c., to remove the same, Switzer, as such supervisor, and the other defendants, acting under his authority and command, entered upon said land and removed the fence, &c., as they lawfully might, &c. To this the plaintiff replied that the land entered upon was not a legally constituted public highway; that the fence removed by the defendants was not in the alleged highway; that the plaintiff was not legally notified to remove the fence; and that the defendants did enter upon the premises of their own wrong and without authority, &c.

W. C. Wilson, for the appellant.

R. Jones and J. O’Brian, for the appellees.

The issues were submitted to a jury, who found for the plaintiff. New trial refused and judgment on the-verdict.

After this, the defendants filed, in the same Court, their petition, alleging therein various causes for a review of the proceedings, &c. And the Court, on final hearing of the petition, reversed the judgment, &c., and from this judgment of reversal, Timmons appeals to this Court.

The appellant, in his brief, says that “ The only point in this .case is, whether the Common Pleas was ousted of jurisdiction by the question of title to lands being raised collaterally. The Court below held that it was — which was wrong.”

In our opinion, the title to real estate was plainly in issue by the pleadings in the cause; and hence, the Common Pleas had no jurisdiction. 2 R. S. p. 18, § 11.—Dixon v. Hill, 8 Ind. R. 147. The case at bar falls within the reasoning of the Court in Anderson v. Buchanan, 8 Ind. R. 132. And upon the authority of that case, the judgment of reversal must be sustained.

The judgment is affirmed with costs.  