City of Indianapolis v. Kingsbury

• Decision Date: 30 December 1884
• Docket Number: 11,599
• Parties: The City of Indianapolis v. Kingsbury et al
• Court: Indiana Supreme Court

101 Ind. 200

The City of Indianapolis v. Kingsbury et al

No. 11,599

Supreme Court of Indiana

December 30, 1884

Petition for a Rehearing Overruled June 27, 1885.

From the Shelby Circuit Court.

Judgment reversed, with instructions to restate the second conclusion of law, and to render judgment upon the whole finding in favor of the appellant.

C. S Denny, for appellant.

G. W Galvin, E. P. Ferris, W. W. Spencer and J. S. Ferris, for appellees.

OPINION

Elliott, J.

The appellees claim title to a strip of land in the city of Indianapolis, and brought this action to quiet title. On their application the venue was changed to the Shelby Circuit Court, and the case comes to us upon the special finding of facts and conclusions of law stated by that court.

The character of the case made it difficult to make a clear and concise special finding, and that made by the court is very lengthy and much confused, for it blends matters of evidence with matters of fact, and mingles them with matters of law. It has been a task not free from difficulty to eliminate immaterial matters and extract the material facts from the mass, but we have gathered the material facts and condensed them in the following synopsis: Noah Noble died the owner of the eighty-acre tract of land within which the strip claimed by the appellees is situated, and by his will gave his wife a life-estate, and to the children of a deceased daughter the fee in the land passed by the will and by subsequent partition; those children are Dorman, Preston and Susan Davidson, and Catharine Miller, now a married woman. In 1866 a partition was adjudged between the heirs of Noah Noble, and the land, of which the strip in controversy forms a part, was set off to Susan, Noah and Catharine Davidson, except that part of the land which lies south of Market street. Before the partition was made eight acres were sold by order of the court upon the petition of the guardian, and embraced in this eight-acre tract is that part of the strip here in dispute, which extends north from Washington street three hundred and thirty-three feet. To this sale Dorman N. Davidson, an adult devisee, consented, and, at the same term of court, he joined the guardian in petitioning the court to direct that the eight acres should be subdivided into town lots before sale, and upon this petition an order was made directing the subdivision, and also directing that a plat should be made. Pursuant to this order a plat was made and reported to the court, and a proper order was entered approving it. The plat was acknowledged and recorded according to law. In the explanation annexed to the plat it was recited that it embraced eight acres, more or less, and that Market street, sixty feet in width, was donated to the public, but no mention was made of the strip here the subject of dispute. The plat, however, shows the dimensions of the lots laid out, and shows, also, a strip fifty feet in width extending north from the National Road, or what is now called Washington street, to Market street. This strip appears on the plat as a way, but it is not designated as a public street, nor is it numbered as a lot, although the lots on each side of it are appropriately and regularly numbered. The guardian of the minor devisees and Dorman N. Davidson sold lots numbered one to seven inclusive, as shown by the recorded plat, to divers persons, and these deeds were duly reported to the court and received its approval. Under these conveyances the grantees have entered into possession, and some of them have made valuable and permanent improvements. On lots designated on the plat as number two and number three houses were erected on the east and on the west side of the fifty-foot strip as early as the year 1866. This strip was never sold.

The finding recites that there was an agreement between the guardian and Dorman N. Davidson that this strip should be reserved as a private way, but there is no finding that this was known to the court, nor is there any finding that the city, or any of the purchasers of lots, had actual or constructive notice of this agreement. About the time the petitions referred to were filed, the devisees of Noah Noble had opened up a drive-way over the line of the strip in dispute, from the family residence to the National Road, and a gate was swung across the way on the north side of the National Road, but in 1866 this gate was discontinued. In 1863 the purchasers of lots two and three built fences along the line of the street for the purpose of enclosing their lots. In April, 1868, Susan Lavalette Davidson, Catharine Davidson, now Catharine Miller, the appellee, and Dorman N. Davidson, instituted proceedings for partition of the lands lying north of Market street, and, in December of that year, a decree of partition was entered, and it was also decreed that the commissioners appointed to make partition should lay the land off into lots, streets and alleys. Pursuant to this decree the land was laid off and a plat made, this plat received the approval of the court and was duly admitted to record. On this plat is a way designated as Highland street, extending north from Market street and continuing in a direct line, and of the same width as the way which appears on the plat of June, 1863, as extending south from Market street to the National Road. It appears that on the 31st day of December, 1868, the parties inspected and approved the plat made by the commissioners. At this time the appellee Catharine Miller was a married woman, having been married in October of that year. After the gate on the north side of the National Road was abandoned, in 1866, another gate was placed across the way at a point about two hundred feet north of Market street, and this gate remained until the autumn of 1869, when it was abandoned. The finding states that the purpose for which this gate was placed across the way was to keep cattle off the Davidson lands. Since that time there have been no obstructions across the way, and the whole length of Highland street, from the National Road to the northern terminus of the street, was freely used by the public. Previous to 1869, a lot had been sold to James L. Mitchell, situated on the corner of Market street, and, with the exception of the cost of improving in front of that lot which was paid by Mitchell, Dorman N. Davidson graded and gravelled, at his own expense, Highland street from Market street north. As early as 1876, James G. Douglass constructed a stone sidewalk along the front of lot two, then and for some time prior to that date, owned by him. Prior to the year 1869, the city of Indianapolis constructed a board sidewalk along the east side of Highland street, and diagonally across some open lots, for the convenience of children attending a public school. In 1871, the city constructed a large public cistern at the intersection of Market and Highland streets for use of the fire department of the municipality. James L. Mitchell bought his lot in 1869, and bought with reference to the strip now called Highland street, as a public street, and in 1877, all of the devisees of Noah Noble joined in a deed to Mitchell, describing his lot as bounded by Market and Highland street, and a like mention of the latter street is made in a deed to James G. Douglass, executed in September, 1877, and in May, 1873, Mrs. Miller and her husband joined in a deed conveying to the city land for the purpose of widening Ohio street, and in this deed reference is made to Highland street. In April, 1881, Maria G. Cooper bought from Joseph L. Fisher, a remote grantee of Mrs. Miller and her associate owner, a part of lot two in the subdivision of 1868, and on that lot Mrs. Cooper built a house to front on Highland street, with a side front on Ohio street, and there are no other means of egress or ingress to and from the main front except Highland street. A public school house was erected by the city in 1878, about three hundred feet east of Highland street. This school house is built of brick, is two stories high, contains eight rooms, and is the only school house in the school district. Highland street affords the most convenient means of going to and from the school house, and if it is closed a great number of children will be compelled to travel about three squares out of their way to reach it.

Ordinances for the improvement of the street from the National Road north were introduced in the common council, but, owing to a disagreement of the adjoining property-owners as to the grade which should be established, they were not adopted. A remonstrance signed by Mrs. Miller and the other devisees of Noah Noble was addressed to the common council in 1878, in opposition to a proposition to improve the street. This remonstrance speaks of Highland street as a public street of the city, calls it by that name, and protests against bouldering the gutters as extravagantly expensive, and protests upon the further ground that there are suits pending to determine the title to adjoining lots, but no question is made as to the highway being one of the public streets of the city; on the contrary that fact is fully affirmed. No taxes have ever been paid upon the strip in dispute since the making and recording of the plat of 1863. All of the devisees of Noah Noble, on the 3d day of November, 1881, united in a deed purporting to convey the strip of land from the National Road north to George W. Galvin and Mary K. Galvin, and these parties afterwards joined in a deed professing to convey it to Sarah S. Kingsbury, and she afterwards executed a deed for the one undivided half to Catharine Miller.

Conclusions of law were thus stated:

"1st. As to all that land in controversy north of the south line of Market street, I find that ...