Ayres v. Lucas

• Decision Date: 02 November 1945
• Docket Number: 17374.
• Parties: AYRES v. LUCAS et al.
• Court: Indiana Appellate Court

63 N.E.2d 204

116 Ind.App. 431

AYRES v. LUCAS et al.

No. 17374.

Appellate Court of Indiana, in Banc.

November 2, 1945

Appeal from Decatur Circuit Court; Raymond B. Rolfes, Judge.

O. B. Hanger and Connor D. Ross, both of Indianapolis, and Paul R. Benson, of New Castle, for appellant.

A T. Conner, of Columbus, for appellees.

DRAPER Judge.

The appellant brought this action to enjoin appellees from interfering with his removal of a pipe-line laid under the surface of appellee's land. He was unsuccessful below and appeals from the overruling of his motion for new trial which specifies (1) that the decision is not sustained by sufficient evidence and (2) it is contrary to law.

The first specification of the motion for new trial is inappropriate and presents no question. The second is sufficient to raise a question under (2) above. Wilson, Adm'x, v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474; Department of Ins., etc., v. Indiana Trav. Assur. Co., Ind.App.1945, 58 N.E.2d 761.

In 1898 one Carmichael, who then owned the land, conveyed to appellant's remote assignor 'the right to lay, maintain, operate and remove a pipe-line' on the land in question. The line was laid shortly after the execution of the instrument, which was never recorded. In 1919 appellees contracted to purchase the land from Carmichael for a valuable consideration, and in 1920 they received title by warranty deed pursuant to the terms of the contract, took possession and have ever since retained it. Neither the purchase contract nor the deed referred in any way to the right of way grant.

The complaint is in two paragraphs, the theory of each being that although the right of way grant was not recorded, the appellees are nevertheless bound by it because they bought the land with knowledge that the pipe-line was located there, and because they knew, or in the exercise of due care should have known, of the existence of the right of way grant.

In their answer to the first paragraph of complaint the appellees, in addition to several rhetorical paragraphs admitting of denying the allegations of the complaint, pleaded as a separate rhetorical paragraph, by way of 'further and additional answer,' title in themselves by adverse possession. In the first paragraph of their answer to the second paragraph of complaint the appellees denied the controverted allegations thereof, and filed a separate paragraph of answer, pleading that the appellant had abandoned the pipe-line. Their answer to the first paragraph of complaint was filed while the 1940 Revision of Rule 1-3 was in effect, their second while the 1943 Revision thereof was effective.

The appellees offered no evidence to support their allegations of title by adverse possession or abandonment, and they do not rely upon either of those propositions here. Instead they rely entirely on the appellant's alleged failure to prove the allegations of his complaint, particularly with reference to knowledge on their part, actual or imputed. The appellant asserts, however, that these affirmative answers necessarily embrace an admission of knowledge, on the part of the appellees, of the location of the pipe-line, which admission must as a matter of pleading, prevail over the pleaded denial of such knowledge.

Sec 2-1006, Burns' 1933, Baldwin's 1934, Sec. 109, provides that a party may state in his answer, in separate paragraphs thereof, as many defenses as he may deem he has. Inconsistent defenses may be so pleaded, and admissions made in an affirmative paragraph of answer, pleaded along with denials of the allegations of the complaint pleaded in a different paragraph of answer, cannot be taken as admissions to relieve the plaintiff of the burden placed upon him by the denials. Ray v. Moore, Adm'r, 1900, 24 Ind.App. 480, 56 N.E. 937; Graves v. Garard, 1909, 44 Ind.App. 712, 90 N.E. 22; Fudge v. Marquell, 1905, 164 Ind. 447, 72 N.E. 565, 73 N.E. 895; Watson's Works, Vol. I, § 580. Appellees' rhetorical paragraph of answer of title by adverse possession, though cast among other rhetorical paragraphs denying the allegations of the complaint, was a paragraph complete within itself and contained no denials of any facts alleged in the complaint. This method of pleading was ot forbidden under the 1940 Revision of Rule 1-3, and affords no ground for relieving appellant from the burden of proving the denied...