The Town of Freedom v. Norris

• Decision Date: 26 May 1891
• Docket Number: 15,032
• Citation: 27 N.E. 869,128 Ind. 377
• Parties: The Town of Freedom v. Norris
• Court: Indiana Supreme Court

27 N.E. 869

128 Ind. 377

The Town of Freedom v. Norris

No. 15,032

Supreme Court of Indiana

May 26, 1891

From the Owen Circuit Court.

Judgment affirmed.

I. H Fowler and W. A. Pickens, for appellant.

D. E Beem and W. Hickam, for appellee.

OPINION

Coffey, C. J.

This was an action by the appellant against the appellee, in the Owen Circuit Court, to recover the possession and to quiet the title to the land described in the complaint.

The complaint consists of two paragraphs. The first alleges that the appellant is the owner in fee simple and entitled to the possession of the land, and that the appellee unlawfully keeps it out of possession.

The second paragraph alleges that the appellant is the owner in fee simple of the land, and that the appellee is asserting an unfounded title thereto, which casts a cloud upon the title of the appellant.

The cause was tried by the court, which, at the request of the appellant, made a special finding of the facts proven, and stated its conclusions of law thereon.

The appellant excepted to the conclusions of law, and assigns as error that the circuit court erred in such conclusions.

The material facts in the case, as disclosed by the special finding, are, that on the 18th day of November, 1834, John R. Freeland, then the owner in fee simple of the west fractional northwest quarter of section twenty-one (21), in township nine (9) north, of range four (4) west, comprising all of said northwest quarter west of White river, caused to be surveyed and platted what has since been known as the town of Freedom. The plat was never acknowledged, and was not recorded until the 10th day of August, 1841. As shown by the plat, Randolph street, Wall street, Spring street, Market street, Hill street, Limestone street and Franklin street run east and west, and Water street runs north and south, the latter being on the extreme eastern boundary of the town, and is sixty feet in width. At the time the plat was prepared there was a strip of land eighty feet wide between Water street and White river, extending from Franklin street south to a point midway between Spring and Market streets. This strip was impliedly dedicated by Freeland to the public as a common for the purpose of making, loading and landing flat boats then used to carry freight on the river, and for access to the river. The dedication was accepted by the public and the citizens of the town, and used by them for the purposes for which it was dedicated until about the year 1852. Between the years 1834 and 1852 the river washed away the land so dedicated to such an extent that the west bank of the river ran near the east edge of Water street, and by reason thereof said strip was not, and, indeed, could not be used by the public for the purposes intended by the dedication. About the year 1862 the business of flat-boating on White river was entirely abandoned at the point in controversy, and has never since been resumed. After the change in the stream, and the abandonment of the dedicated land for the purposes above stated, the river again, by gradual process, changed its course at this point, and for more than thirty years prior to the time this cause was tried the eighty-foot strip above described, and all its accretions, have been claimed and occupied by the appellee and his grantors, who have kept the same in cultivation as farm lands, so far as they were capable of cultivation, and have paid the taxes on the same. About the year 1857 the land dedicated being partially washed away at some points, and wholly in the river at other points, the same fell into disuse by the public and by the town of Freedom as a boat-yard or landing, and has not since that date been used for public purposes.

At the time Freeland platted the town of Freedom he retained a strip one hundred feet wide on the north side of the town, and a like strip on the south side, neither of which was included in the platted territory nor in the dedication.

The accretions caused by the gradual change in the river attaching to the strip dedicated by Freeland, and to the land retained by him, not dedicated or included in the platted territory, now amount to about twenty-five acres.

The appellee makes title to the land by a regular chain of conveyances from Freeland to himself. Neither the town of Freedom nor the public has at any time within thirty years prior to the trial of this cause had possession of, or used, or occupied, any of said land, except that portions of the strip dedicated, and which had been used for the purpose of access to a church, and to reach a public highway; but it has not been used for any of the purposes intended by the dedication, or for which it was accepted by the public.

The town of Freedom was incorporated in June, 1888. The town, as incorporated, includes the land in controversy. Under these facts the court found, as matter of law, that the appellant was entitled to the land dedicated, and no more.

The appellant claims the land in controversy under the implied dedication made by Freeland in 1834, while the appellee claims under regular conveyances executed by Freeland, and those claiming under such conveyances.

The dedication mentioned in the special finding did not vest in the town of Freedom, nor in the public, the fee to the eighty-foot strip of land, over which the public was given the right to pass, but left the fee in Freeland, subject to a mere easement. Freeland, or his grantees, at any time since the dedication could have maintained ejectment against any one taking unlawful possession of the strip. Terre Haute, etc., R. R. Co. v. Rodel, 89 Ind. 128. It is plain, therefore, under the repeated holdings of this court, that the appellant could not recover under the first paragraph of its complaint, as it declares upon a fee simple title. Stout v. McPheeters, 84 Ind. 585; Stehman v. Crull, 26 Ind. 436; Rowe v. Beckett, 30 Ind. 154; Groves v. Marks, 32 Ind. 319; Hunt v. Campbell, 83 Ind. 48.

Assuming, without deciding, that the appellant, under the second paragraph of the complaint, was entitled to the relief sought, we proceed to an examination of the title of the respective parties to the suit.

It may be remarked at the outset that it is well settled at common law that one owning land in fee, bounded by a stream of water, is the owner of all the accessions to such land caused by a gradual change in the channel of such stream. When such land is subject to an easement, the question as to whether such accretion becomes a part of the easement depends, of necessity, upon the nature of the easement, the intention, express or implied, of the party granting, or dedicating, the same, and the intention of those accepting and acting upon such grant, or dedication. If one owning land bounded by a stream should dedicate a public highway running parallel with the stream, and extending to the water's edge, and accretions should take place beyond the highway not necessary to its use, it could not be contended with reason, that such addition to the land belonged to the public, or was subject to the easement granted.

But if one owning the fee should dedicate a public highway running to a public ferry, or to a public dock or boat-landing, and accretions should take place after the dedication, over which it was necessary to pass in order to reach the ferry or dock then such accretions would become subject to the easement so dedicated, otherwise the object of the donor would be defeated and the public would suffer. The...