Burr v. Smith
| Decision Date | 21 April 1899 |
| Docket Number | 18,470 |
| Citation | 53 N.E. 469,152 Ind. 469 |
| Parties | Burr v. Smith |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
Affirmed.
H. L Burr and William A. Brown, for appellant.
E. H Bundy and J. M. Morris, for appellee.
This action was commenced by appellee, and successfully prosecuted, to enjoin appellant from entering upon certain land alleged to be owned and possessed by the appellee. The questions discussed by the parties relate to the sufficiency of the complaint, and to the action of the court in denying the motion for a new trial.
The controversy between the parties is in regard to the title of a strip of ground situated on the west side of a certain fence line. The complaint may be summarized as follows: Appellee is the owner of five acres of land, described in her complaint, situated in Henry county, Indiana. Adjoining this tract on the east are five acres of land owned by the appellant. In 1871, twenty years and over before the commencement of this action, the respective grantors of appellant and appellee laid out and agreed upon the line dividing said tracts, and constructed on said agreed line a partition fence. This fence, for a period of more than twenty years, has been recognized and considered as the true line dividing appellee's said tract of land, on the east, from that owned by appellant on the west.
Appellee and her immediate grantor, for over twenty years, have been in "full, actual, visible, notorious, exclusive, and continuous possession" of the land situated on the west side of this fence, and have held and possessed it, adverse to the appellant and his grantors, during said period of time, by virtue of appellee's title, and that of her grantor, and by virtue of the agreement establishing the fence as the dividing line between the lands of said parties.
In June, 1895, prior to the beginning of this suit, appellant unlawfully entered upon appellee's said land, at a point about ten feet west of the east line of her said lands, and west of this division fence, and dug holes, and planted fence posts therein, and is threatening to build the fence on her said land, and thereby unlawfully appropriate to his own use a certain strip of ground off the east side of her said tract, to her great damage, etc.
It is insisted by appellant that the complaint does not show that appellee claims to be the owner of any land, "either by deed or by adverse possession, other than the land described in the complaint." Hence, it is said, that it is left to be presumed that she is the owner of other lands, not described, on which the fence in question was built under the alleged agreement. There is no merit in this contention. The complaint sufficiently shows that appellee is the owner of the five acres described in the complaint, and that this tract adjoins on the east the lands of appellant, and that the fence in question was the dividing line between those two tracts; that the appellant was erecting and threatened to continue to erect a fence west of the old line fence, upon the very lands of which appellee alleged she was the owner and in possession.
She does not, in her complaint, seek to recover any particular land, but seeks only to enjoin appellant from entering and erecting a fence upon the lands described, of which she, as it is alleged, is the owner.
It is further urged that the complaint is bad for the reason that it does not allege, as contended, that appellant or her predecessors occupied the strip of land in dispute under a claim or color of title. It was not necessary, in addition to the facts shown by the complaint, to aver that the land in question was occupied under a claim or color of title. The pleading, as we have seen, discloses a continued notorious, exclusive, and adverse occupancy of this land by appellee and her predecessors, through whom she claims, for a period of over twenty years. The acquisition of land by adverse occupancy or possession is based upon the twenty-year statute of limitation; and, when this period has completely run, it operates, to all intents and purposes, to extinguish the rights and title of the true owner, and vests the title in fee simple in the adverse occupant. It follows, therefore, that appellant's objections to the complaint are not tenable. Roots v. Beck, 109 Ind. 472, 9 N.E. 698; Palmer v. Dosch, 148 Ind. 10, 47 N.E. 176, and cases...
To continue reading
Request your trial