Baker v. Johnson, 11,407
| Docket Nº | 11,407 |
| Citation | 138 N.E. 780, 79 Ind.App. 413 |
| Case Date | March 27, 1923 |
| Court | Court of Appeals of Indiana |
From Orange Circuit Court; James L. Tucker, Judge.
Action by John Baker against Everett Johnson. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Hottel & Patrick and Will H. Talbott, for appellant.
Elliott & Houston and Arthur McCart, for appellee.
On December 16, 1865, Joel Speer was the owner of the southeast quarter of section 4, township 2 north, range 1 east in Orange county, Indiana. On that date he conveyed the following described portion thereof to William Montgomery:
"Commencing at the northwest corner of said quarter, running thence east with the line to the center of Lost River, thence south with the center of the river about twenty poles more or less, to a point opposite the center of a bayou, thence a westerly direction with the center of said bayou following the meanderings thereof to the westerly line of said quarter and thence north with the line to the place of beginning containing ten acres, more or less."
Afterwards on November 7, 1871, the said Speer convoyed the following described portion thereof to William G. Baker: Eighty acres off the west side of said southeast quarter,
Appellant the immediate grantee of said William G. Baker, commenced this action in November, 1920, by filing his complaint against appellee to quiet his title to the following described portion of said quarter section: "Beginning on the half section line of said quarter section, 45 rods east of the center thereof, running "thence east to the east line of said section; thence south with said east line 160 rods to the southeast corner of said section; thence west 160 rods, to the southwest corner of the southeast quarter of said section; thence north along the half section line to a point 48 rods south of the center of said section; thence northeasterly to the place of beginning."
Appellee, a remote grantee of said William Montgomery, filed his cross-complaint against appellant to quiet his title to the following described portion of said quarter section: Beginning in the center of said section and "running thence east forty-five (45) rods, more or less, to the center of Lost River, thence down the center of said river with the meanderings thereof to the middle north and south section line of said section, and to a point forty-eight (48) rods south of the center of said section, thence north on said line to the middle of said section, and to the place of beginning."
The cause was put at issue on both the complaint and cross-complaint by answers in general denial. The evidence shows that the land in dispute consists of a comparatively narrow strip, lying north and west of the center of Lost river, which forms part of the boundary of the land described in the cross-complaint, and a diagonal line on the bank of said river, which forms part of the boundary of the land described in the complaint. On the trial, the court, by request, made a special finding of facts and stated its conclusions of law thereon. Appellant excepted to each conclusion of law, and filed a motion for a new trial, which being overruled, this appeal followed.
The facts found by the court, briefly stated, are in substance as follows: (1) That appellee holds the title to the following described real estate by successive conveyances from William Montgomery, to whom the same was conveyed by Joel Speer and wife on December 16, 1865, to wit: "Part of the southeast quarter of section four (4), township two (2) north, range one (1) east, in Orange County, in the State of Indiana, bounded as follows: to-wit: Beginning at the northwest corner of said quarter section and running thence east to the center of Lost River, thence down the middle of said river to the west line of said quarter, thence north along said line to the place of beginning, containing ten (10) acres, more or less." (2) That at the time said Montgomery received his conveyance for said real estate, he entered into the possession thereof, up to the center of Lost river, under a claim of right and title, which was open, notorious and adverse, and so remained continuously for a period of more than twenty years; and that for a like period before the filing of appellant's complaint herein, the possession of all of said real estate had been held continuously by appellee and his grantors, immediate and remote, in the same manner, and under a like claim. (3) That appellant holds the title to the following described real estate in Orange county, Indiana, by conveyance from William G. Baker, to whom the same was conveyed by Joel Speer and wife on November 7, 1871, to wit:
On the foregoing facts the court stated the following conclusions of law: "(1) That the law is with the defendant and against the plaintiff on the plaintiff's complaint herein, and that the plaintiff take nothing by reason of his complaint herein; (2) that the law is with the defendant and against the plaintiff on the defendant's cross-complaint herein." On these conclusions of law the court adjudged, that appellant take nothing by reason of his complaint, and that appellee recover his costs. It was also adjudged, "that the law is with the defendant and against the plaintiff on defendant's cross-complaint herein."
Appellant contends that there is no evidence to sustain the finding, that the deed from Speer and wife to Montgomery conveyed the real estate, north and west of Lost river, up to the center thereof, along its entire length in said quarter section. In support of this contention he cites the description contained in said deed, being the first description by metes and bounds set out in this opinion. It will be observed that the course in that description, from the east and west half-section line, only follows the center of said river for a distance of twenty rods, more or less, to a point opposite the center of a bayou, and then follows the center of said bayou, with its meanderings, to the west line of said quarter section. Appellant insists that there is no evidence as to the location of said bayou, and appellee has failed to show the contrary. We will assume, therefore, that this is true. Without such evidence the court had no means of knowing whether the bayou in question, which we only know ran in a westerly direction, was located where the river now runs, or north or south of its present location. We therefore conclude that appellant's contention is well taken.
Appellant also contends that there is no evidence to sustain the finding that said Montgomery, or any of his grantees immediate or remote, ever entered into the possession of the whole of the strip of land...
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