Carskaddon v. Mills

• Decision Date: 08 June 1892
• Docket Number: 624
• Citation: 31 N.E. 559,5 Ind.App. 22
• Parties: CARSKADDON v. MILLS ET AL
• Court: Indiana Appellate Court

31 N.E. 559

5 Ind.App. 22

CARSKADDON v. MILLS ET AL

No. 624

Court of Appeals of Indiana

June 8, 1892

From the St. Joseph Circuit Court.

Judgment reversed.

W. A Funk, for appellant.

A. L Brick and J. A. Judie, for appellees.

OPINION

REINHARD, C. J.

Action by the appellant against the appellees for damages for an injury to appellant's horse. There was a trial by the court.

After the evidence for plaintiff was closed the court announced that there would be no necessity of hearing any evidence on the part of the defendants as that for the plaintiff was insufficient to entitle him to a recovery. The court thereupon found for the defendants. The only questions presented here arise upon the sufficiency of the evidence to sustain the finding. The facts disclosed by the evidence are as follows:

Anna Mills is the owner of a lot in the city of South Bend. Meredith Mills, her husband, as her agent, purchased said property for her, and has managed the same ever since. Across this lot ran a road, leading from one street to another in said city and it was used by the traveling public generally for said purpose, and had been so used for a period of from five to fifteen years. The road was a well-defined track made by wagons, buggies, horses, etc. Anna Mills purchased the lot in October, 1890, from one Lucius Hubbard, who had owned it since 1875 and had had an undivided interest in the land out of which it was carved, since 1871. Hubbard lived at some distance from the lot and never saw it but twice during the time he owned it,--the first time about 8 or 10 years and the last time some 5 years previous to the day of the trial. The first time he did not notice the road, but he did see it the last time and made no objection to the use of the lot as a road, except to himself. He "thought" he would fence it in, but did not do so on account of the expense connected with it.

He never consented that any one might use the road, having never been asked for permission to do so. When Mills purchased the property for his wife he knew the road was there. The lot was not fenced on the front and rear, the direction in which the road ran, but was fenced on the sides. After the purchase, appellees at once took possession of and began building a dwelling-house upon it, during the building of which the public continued to use the road. When the house was finished, and the appellees moved into it, they informed the people travelling over this roadway not to use it any longer for that purpose, but no heed was paid to this, when, in the latter part of December, 1890, in order the more effectually to stop the travel over the lot, the appellees stretched a strand of barbed wire across the rear end of the lot, about three feet above the ground and at right angles, or nearly so, with said road. The entire fence was upon the appellee's lot. No notice of any kind was given of this obstruction otherwise than as it advertised itself. The wire could not be seen in the dark of night and only a short distance--twenty to twenty-five feet--in day light. There were no posts that could be seen from the road in the night when the accident hereinafter alluded to occurred. The appellant, who lived in that community, had frequently travelled over the road leading across this lot, and had no notice or knowledge of its being closed up with the wire. The last time before the accident when he passed over the lot was in September or October, 1890. At about 6 o'clock on the evening of January 1, 1891, after it had become too dark to see this wire, the appellant attempted to drive across this lot, in the road, to perform some legitimate errand on the other side. Not knowing of the presence of the wire, he drove his horse briskly ahead of him until the animal come up suddenly against the barbs, cutting a gash in its front leg four to five inches in length and two inches deep, severing the frontal muscle, from which the horse was injured, to the damage of the appellant.

When the appellant had closed his evidence, the learned judge observed that he had examined the law of the case, and saw no reason why a man could not fence in his own land, on his own ground, and that "a travelling man over such property, taking the license into his own hand, without invitation or inducement, because others do so, suffers injury, he must put up with it."

The appellant insists that in this view of the law the court below was in error, and should have sustained his motion for a new trial. The only question it becomes our duty to determine is whether the facts proved by the appellant made a prima facie right to recover.

The first important inquiry that arises is as to the status occupied by the appellant in relation to the appellee's ground at the time the former attempted to cross it on the night of January 1. Was he a trespasser or a licensee, for we think it clearly appears from the evidence that he sustained one or the other of these positions to the property. We think that the right the appellant had, if any, to the use of the appellee's property was the same as that which the public had. The latter had used this ground, as we have seen, without objection, for a number of years. This did not amount to a dedication or give the public an easement, but it did amount to a license. A license may be created either by parol or by acquiescence in the use of the property for the purpose in question without objection. We take it, therefore, that when the appellant had proved that the public had been permitted to use this lot as a roadway he had made a prima facie case of a license.

A mere license, however, to travel over the land of another may be revoked at any time at the pleasure of the licensor. Parish v. Kaspare, 109 Ind. 586, 10 N.E. 109; Simpson v. Wright, 21 Ill.App. 67; 13 Am. and Eng. Encyc. of Law 555.

Where the license is once proved, however, or a prima facie case of such license has been made out, it then devolves upon the party asserting a revocation to prove it. Blunt v. Barrett, 54 N.Y.S. 548.

Consequently if the license in the present case was claimed to have been discontinued or revoked, the burden was upon appellees to show that fact.

Was such revocation established, or was there any evidence from which the court could infer the same?

The transfer of the property, or the fencing of the same, may under ordinary circumstances, be sufficient to amount to a revocation. Ordinarily, a man has a right to use his own property as he pleases, but at...