The Tolleston Club of Chicago v. Clough
| Decision Date | 16 April 1896 |
| Docket Number | 17,550 |
| Citation | 43 N.E. 647,146 Ind. 93 |
| Parties | The Tolleston Club of Chicago v. Clough |
| Court | Indiana Supreme Court |
Rehearing Denied Oct. 14, 1896.
From the Lake Circuit Court.
Affirmed in part, and reversed in part.
J. W Youche and E. D. Crumpacker, for appellant.
Flower Smith & Musgrave, and P. Crumpacker, for appellee.
This action was commenced by the appellee, in the circuit court of Lake county, against the appellant, to quiet his title to certain real estate in said county. In his complaint appellee alleges that he is the owner in fee-simple of all that part of sections 17, 19 and 20, in township 36, range 8, situated south of the thread of the Little Calumet river, and asks to have his title thereto quieted.
A demurrer having been overruled to the complaint, the appellant filed an answer disclaiming all interest in the lands described in the complaint, except in that part of said lands included between the meander line and the thread of the river, and denying the allegations of the complaint as to the lands so excepted.
There was a finding and decree quieting appellee's title to all the lands claimed by him. The appellant filed its motions to modify the findings and also the judgment, so as to exclude from the lands to be quieted in appellee all lands between the meander and the thread of the stream, and also that part of section 17 lying south of the river.
The subjoined is a plat of sections in which land in controversy is situated.
[SEE DRAWING IN ORIGINAL]
Appellant's objection to the sufficiency of the complaint, is that there is in it "no allegation that the claim is adverse to the plaintiff, nor that the defendant's claim is unfounded."
The allegation made in the complaint in regard to appellant's claim to the land is: "That the defendant claims some interest therein, adverse to the plaintiff's, which claim is without right and unfounded, and a cloud upon plaintiff's title." This we think sufficient. The fact that the land whose title is sought to be quieted consists of several parcels is immaterial. Appellee claims to be the owner of it all, and alleges an adverse and unfounded claim by appellant. The allegations as to appellant's claim reach to the whole claim made by appellee.
Many of the questions discussed by counsel under the remaining assignments of error have already been considered by this court in the case of the Tolleston Club v. The State, 141 Ind. 197, 38 N.E. 214. The fact that questions decided in that case should be discussed anew in this, may, perhaps, be accounted for by the circumstance that although the case against the State was begun over three years later than the case at bar, yet that case was appealed to this court and decided before the appeal in the case at bar was taken.
The appellee, as shown by the evidence, derives title by patent from the United States, under the swamp land act of 1850, based upon the plat of the original United States survey of 1834, through mesne conveyances to Ira O. Dibble, and by a deed to himself from the executors of Ira O. Dibble.
The appellant claims under an act of Congress of 1870 for the survey and sale of lands included between the meander lines of the Little Calumet river, contending that the lands between said meanders had not been included in the survey of 1834.
The lands here in dispute are a part of the lands in controversy in the case of the Tolleston Club v. The State, supra. There it was held that the lands between the meanders of the Calumet river, including the bed of the river, were fully surveyed in 1834, and the lands so surveyed all conveyed by patent to the State before 1870; and therefore that the government, not having any such lands unsold or unsurveyed in 1870, the act of Congress for that year and all proceedings thereunder were wholly void. It follows that the appellant in the case at bar, as also in the case against the State, could have no title under the act of 1870, and the survey thereunder, as here claimed.
The lands conveyed to appellee by the executors of Ira O. Dibble, as described in the inventory appraisement, executors' deed and other papers and proceedings in the court having charge of the settlement of the estate of said decedent, omitting the acreage in each description, are as follows:
In the executors' report of sale, the last description is written: "The S. half of lots 1, 2, 3 and 4, Sec. 20, T. 36, R. 8." But counsel...
To continue reading
Request your trial