A number of questions are presented by the appellant upon which a reversal of the judgment of the circuit court is claimed. They will be examined in the order in which they are presented by the record, rather than that adopted by the appellant’s counsel.
It is contended by the -appellant, that the demurrers to the cross complaint, for the reasons, first, that there is a defect of parties plaintiff’; second, that it appears up.on- the face of the complaint that there is another action pending between the same parties, for the same cause; and third, that the complaint does not state facts sufficient to constitute a cause of action, should have been sustained.
Of these in their order. But before entering upon their discussion, it is proper to observe, that the cross complaint was originally filed by all the defendants in the original action, viz.: Carter, Commons, Murphy, and Eisenhour. A demurrer, however, was sustained to it as to Murphy and Eisenhour, because of their want of capacity to sue. This ruling of the court, in effect, struck the names of Murphy and Eisenhour from the complaint, and left it to be -prosecuted in the names of Carter and Commons only. It was subsequent to this ruling that the appellant demurred to the complaint, becau'se it did not state facts sufficient to constitute a cause of action. A demurrer for the statutory cause of the want of legal capacity to sue, has reference to some legal disability of the plaintiff1, such as infancy, idiocy, Or coverture, and not to the fact that the complaint upon its face fails to show a right of action in the plaintiff’. It was held in Berkshire v. Shultz, 25 Ind. 523, after a very careful consideration of the question, that where two or more plaintiffs unite in bringing a joint action, and the facts stated do not show a joint cause of action in them, the proper mode of taking advantage of the defect is by a demurrer to the complaint, because it does not state facts sufficient to constitute a cause of action; and that the defect can only- be cured by striking out the name of the plaintiff’ *364improperly joined, or by so amending the complaint as to show a right of action in all the parties.
Under this ruling, the demurrer in the ease at bar was improperly sustained as to Murphy and Eisenhour, on the ground of their want of capacity to sue; but the appellant cannot complain of that error; and, as it disposed of the case as to Murphy and Eisenhour, and not as to the other plaintiffs, the latter were left as the only plaintiffs in the case, and could continue its prosecution, as though the complaint were amended by striking from it the names of Murphy and Eisenhour as plaintiffs.
We return to the questions raised by the demurrers. And first, does the complaint show a defect of parties plaintiffs? It is insisted, that as the town of Union is incorporated, and that part of the alleged highway extending over a portion of the lots of the appellant is within the corporate limits of’the town, the corporation should have been made a party plaintiff'. We do not think so.
The appellees predicate their right to the relief prayed on the ground that they are the owners of lots fronting on the highway which the appellant had obstructed, and was still threatening to obstruct, denying the existence of such highway, and thereby disturbing them in its enjoyment, to their injury. They seek to redress a personal injury to themselves, and if it be admitted that the corporation possessed jurisdiction and control over the highway—a question which will be examined in another part of this opinion—still it was not a necessary party plaintiff’ in the cross complaint.
2. Does the complaint show on its face that there was another action pending when it was filed, between the same parties for the same cause?
It is insisted by the appellant’s counsel, that the original action in this case by the appellant against the appellees and others, and in which the cross complaint is filed, is another action for the same cause, within the meaning of the law. Both the original and cross complaints are appeals to *365the chancery powers of the court. The original complaint denies the existence of the alleged highway, seeks to quiet the appellant’s possession of the lots described, freed from the claim of such highway, and prays for a perpetual injunction against the appellees from disturbing his possession or asserting an easement over the lots as a public highway. It can only be supported as a complaint in chancery, quia temei.
The cross complaint, though involving the same subject, is, in its object, just the reverse of, and antagonistic to, the original complaint; it asserts the existence of an easement as a public highway over a part of the appellant’s lots, charges the appellant with having illegally obstructed it, to the injury of the appellees, and prays that he be perpetually enjoined from repeating or continuing such obstruction. It prays affirmative relief, which could not be properly granted upon a successful defense merely, of the original suit; it was not for the same cause as the original complaint; and the demurrer for that cause was properly overruled.
8. The remaining cause of demurrer is, that the cross complaint does not state facts sufficient to constitute a cause of action. The first objection made to its sufficiency under this cause of demurrer is, that it appears by the cross complaint that the alleged location of the highway by order of the board of county commissioners is a nulity, and that the facts stated do not show the existence of a valid highway, either by user or dedication.
It is alleged in the cross complaint, that in the year 1840, a public.highway was located and established by the board of commissioners of Eandolph county, a part of which was located on the land now constituting the lots of the appellant; that the location, however, was defective in not specifying the width of the highway, but that in pursuance of the order of the commissioners, the supervisor of the proper road district did, in the year 1840, open and improve the same thirty feet in width—being in part upon the lots of the appellant, as a public highway; and that it was contin*366uously thereafter kept, maintained, and used by the public, in the same place, and of the width aforesaid, and with the knowledge and consent of the owners of said land, as a public highway, for more than twenty years, and until it was unlawfully obstructed by the appellant. The facts thus alleged clearly show the existence of a valid public highway by user. It is declared by statute, that “all public highways which have been or may hereafter be used as such, for twenty years or more, shall be deemed public highways.” 1 G. & TI. 366, sec. 45. See- also Epler v. Niman, 5 Ind. 459; Hays v. The State, 8 Ind. 425; Jackson v. Smiley, 18 Ind. 247. The facts alleged in the cross complaint are clearly sufficient to entitle the appellees to the relief prayed, and the demurrer to it was therefore properly overruled.
Another question presented in the case arises upon the ruling of the court in sustaining the demurrer to that paragraph of appellant’s answer to the cross complaint called a plea •puis darrein continuance, setting up a vacation of the highway in controversy, pending the litigation, by the board of trustees of Union City.
Two objections are urged by the appellees’ counsel to the sufficiency of that paragraph. They are:
1st. That the board of trustees had no jurisdiction over, or power to vacate, the highway, it not being a street or alley of the town, within the meaning of the statute for the incorporation of towns.
2d. That if the board of trustees possessed such power, still the answer fails to show that it was exercised in .conformity with the law; and that the order of vacation was therefore null and void.
It is claimed by the appellant’s counsel, that the ninth clause of section 22 of the act for the incorporation of towns (1G. & IT. 624) conferred on the board of trustees of the town the power to vacate so much of the highway in controversy as was within the corporate limits. That clause reads thus: “Ninth. To lay out, open, grade and oth*367erwise improve the streets, alleys, sewers, sidewalks and crossings, and keep them in repair, and to vacate the same.”
The board of trustees of an incorporated town is a tribunal of special limited powers and jurisdiction, which are conferred by statute for special purposes.
By the ninth clause of the section referred to, the power to vacate streets and alleys, within the corporate limits of the town, is conferred on the board of trustees. The words “streets and alleys” relate exclusively to the ways or thoroughfares of towns and cities. Ordinarily, they are laid out and dedicated to the public use, and especially for the use and convenience of the property holders of the town or city, by the proprietor thereof, or are laid out and established for the same purposes by the corporate authorities. “Highway” is a word of much broader signification; it includes every species of ways over which the public at large have a right of passage, whether they be roads, navigable rivers, or streets and alleys. Thompson Highways, pp 1, 6. Hence, whilst every street is a highway, yet every highway is not a street. A clear distinction is recognized by the Constitution and laws of this State between common roads, or highways, and the streets and alleys of towns or cities. See sec. 22, art. 4, of the Constitution, 1 G-. & TI. 40; the act to provide for the opening, vacating, and change of highways, 1 G-. & H. 359; the act touching the laying out and vacating towns, streets, alleys, &c., 1 G-. &H. 632; The Common Council of Indianapolis v. Croas, 7 Ind. 9; City of Lafayette v. Jenners, 10 Ind. 70-79. It is said in the case last citecj, that “a highway is not a street, either technically or in common parlance.”
In the case under consideration, the part of the highway in controversy is located on the line dividing the south-east quarter from the north-east quarter of a section of land. Subsequent to the location of the highway, the town of Union City was laid off on the south-east quarter of the section, with a tier of lots, including those of the appellant, extending to the north line of said quarter section, and con*368sequently to the middle of the highway, the whole width thereof being thirty feet.
The order of vacation set up by the appellant is, “that the highway on fifteen feet in width immediately south of the north line of the south-east quarter of section,” &e., “to wit, on the fifteen feet in width on the north line of lots (here the numbers of eleven lots, including those of the apappellant, are given),in the town of Union City,be and the same is hereby vacated.” It thus appears that the order of vacation only extends to one-half of the width of that part of the highway, thereby reducing it to fifteen feet in width. It is not claimed that it was a street or alley of the town, nor was it vacated as such, but as a highway.
It seems very clear that the board of trustees of the town had no jurisdiction or power, under the law, to grant the order of vacation, and it is therefore void. It follows that the demurrer to the answer setting it up was properly sustained.
This conclusion renders an examination of the second objection to the answer unnecessary.
It is also claimed, that the court erred in proceeding to the trial of the issues made upon the cross complaint prior to the filing of the answer puis .darrein continuance, after the demurrer to that answer was sustained. At common law such a plea is a waiver of all previous pleas, and upon a demurrer being sustained to identities the plaintiff to judgment. "Whether that rule is applicable to the facts of this case, need not be determined; as, if the action of the court in proceeding to trial was erroneous, the error did not affect any substantial right of the appellant, and could not reverse the judgment. 2 G-. & II. 122, sec. 101.
Sustaining-the demurrer to the second, third, and fourth, paragraphs of the appellant’s answer to the cross complaint is assigned for error, and insisted upon in argument; but as the abstract contains no statement of the nature or substance of these paragraphs, we do not examine the question.
Judgment affirmed, with costs.
J. Smith and M. Way, for appellant. T. M. Broione and Gr. II. Bonebvalce, for appellees.. Ebazeb, J.I clo not concur in tlie opinion that a highway lying within the boundaries of an incorporated town is not a street in the selisc of our Various statutes, and not within the jurisdiction of the corporate authorities as fully as any other street. I am of quite the ’ contrary opinion. Streets and highways in a town are all highways, and, in my opinion, arc correctly designated by the use of either .name. I can conceive of no possible practical good likely to result from holding that within such corporations some highways shall, as to the power of vacating them only, be under the jurisdiction of the corporation, while others shall be subject to the control of county commissioners. But I do perceive that embarrassment and confusion will continually flow from it. Thus, if an existing road be adopted as a street, it could only be changed or vacated by the utterly useless process of procuring the concurrent action of two' independent bodies.
Then, the act of March 3d, 1859 (1 Gk & Id. 594), gives1 the corporate authorities complete control of the supervisor-within the town. He must repair such ways as they order, and allow such to be or become impassable and useless ■ as they may deem useless. What conceivable reason, then;, could have moved the legislature to intend that, nevertheless, the county commissioners must be invoked to vacate any such way? There is none which seems to me satisfactory. It was never intended, I think. In the case of cities-the matter is put beyond cavil or quibble. Acts 1865 (Spec.. Sees.), p. 27, see. 58. And in the last named act it is plain,. I think, that the word “street” is used to signify “highway.”' Why should a highway have less sanctity in a city than in. an incorporated town? I cannot impute to the legislature an intention to require a thing plainly useless, in the presence • of language which, without violence to it, seems to admit: of a different construction.