City of Indianapolis v. Bd. of Church Extension of United Presbyterian Church

• Decision Date: 05 February 1902
• Citation: 62 N.E. 715,28 Ind.App. 319
• Parties: CITY OF INDIANAPOLIS et al. v. BOARD OF CHURCH EXTENSION OF UNITED PRESBYTERIAN CHURCH.
• Court: Indiana Appellate Court

28 Ind.App. 319

62 N.E. 715

CITY OF INDIANAPOLIS et al.

v.BOARD OF CHURCH EXTENSION OF UNITED PRESBYTERIAN CHURCH.

Appellate Court of Indiana, Division No. 2.

Feb. 5, 1902.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by the Board of Church Extension of the United Presbyterian Church against the city of Indianapolis and others. Judgment for plaintiff, and defendants appeal Affirmed.J. W. Kern, J. E. Bell, John F. Carson, and Charles M. Thompson, for appellants, F. H. Blackledge and W. W. Thornton, for appellee.

WILEY, J.

The controversy involved in this appeal is over the title to a strip of ground 10 feet wide and about 60 feet long at the intersection of Massachusetts avenue and East street in the city of Indianapolis. Appellee was plaintiff, and appellants, as defendants, answered separately by denial Trial by the court, and upon proper request the court made a special finding of facts, and stated its conclusions of law thereon. Though the conclusions of law were favorable to appellant Weiss, yet he has appealed. Each of the appellants moved for a new trial, which motions were overruled. The errors assigned bring before us for review the conclusions of law and the overruling of the motions for a new trial.

The real point in issue depends upon whether Massachusetts avenue, immediately in front of the real estate in controversy, is 90 or 80 feet wide. If it is 90 feet wide, then said real estate is a part of the highway, and not a part of the abutting lots. On the contrary, if the avenue is only 80 feet wide, then said 10-foot strip is not a part of the highway, but a part of the abutting lots. The court found as a fact that the avenue at that point was only 80 feet wide. Massachusetts avenue, as originally laid out and improved, up to the point where it intersects East street, is 90 feet wide. It is the contention of appellee that said avenue, as extended northeast beyond East street, is only 80 feet wide. In 1836 one John Wood was the owner of outlet 41. Outlot No. 41 was at the intersection of East street and Massachusetts avenue, and formed the northeast corner of said intersection. Massachusetts avenue was shown on the original town plat, which plat showed said outlot No. 41, and on which said avenue was marked and designated as 80 feet wide in front of said outlot. November 7, 1836, said Wood made and executed a plat of said outlot, together with other lands, into 25 lots, numbered from 16 to 40, which plat was duly recorded. In this plat Massachusetts avenue, as extended northeast, was designated as 90 feet wide. Upon said plat, fronting west on East street, was marked three lots, viz., 27, 28, and 29, which lots were immediately north of Massachusetts avenue. Said lot No. 27 was triangular in shape, and was immediately in the angle formed by the intersection of said avenue and street. Lot 27 had a frontage on East street of 88 feet, and the strip of land in controversy was between the north line of said avenue as shown by the original plat and the south line of said lot No. 27 as shown on Wood's plat. By subsequent conveyances one David G. Cale became the owner of said lots 27, 28, and 29. February 19, 1872, said Cale subdivided said lots, by a duly executed and recorded plat, into seven lots, numbered from 1 to 7, inclusive, all of which lots fronted on Massachusetts avenue. At the rear of lots 1 and 2 of Cale's subdivision an alley is designated on the plat, and dedicated to the public. On said plat the width of Massachusetts avenue is not designated. February 19, 1872, said Cale executed his corrected plat of subdivisions of lots 27, 28, and 29, and on December 22, 1883, caused the same to be recorded. Said corrected plat divided said lots into eight instead of seven lots. By successive conveyances the title to lots 1 and 2 in Cale's subdivision was vested in appellee June 7, 1872. June 19, 1896, appellee conveyed to appellant Weiss said lots 1 and 2, in which conveyance they were described as follows: “Commencing at the southwest corner of lot 1, at the intersection of the east line of East street and the northwest line of Massachusetts avenue, running thence north along the east line of East street one hundred (100) feet; thence east at right angles with said East street fifty (50) feet, to the east line of lot number two (2); thence south along the east line of lot number two (2) to the northwest line of Massachusetts avenue; thence southwest along the northwest line of said avenue to the place of beginning, as shown by the corrected plat,” etc. Since 1872 the city of Indianapolis has made improvements upon the roadway and sidewalks of Massachusetts avenue at various times in front of said lots, and in all of said improvements the city treated and improved said avenue as being 80 feet wide, treating the northwest line of said avenue as the original line, as shown on the original plat, opposite said lots 1 and 2. During all of said time persons owning and occupying said two lots have maintained a fence on said line of Massachusetts avenue along the northwest line of said sidewalk as so improved, and during said time used and occupied the lands lying within the limits described by said fence. The said avenue, at the time this case was tried, had been permanently improved in the roadway by asphalt, and the sidewalks with cement. Since said subdivision the city of Indianapolis has assessed and collected taxes on said lots 1 and 2, and during all of said time said 10-foot strip has been treated by said city as a part of said lots. During all these improvements the city treated said avenue opposite said lots as being 80 feet wide, and the north line thereof as originally shown on the city plat of outlot 41, and the same as the fence line has at all times been, which fence line is the same as it has been for 40 years. In 1873 a blacksmith's shop was built on the north line of said avenue, on the line as above described, covering said 10-foot strip, and has since remained there. A dwelling house stands on lots 1 and 2, and one corner thereof rests on said 10-foot strip, and has so rested since 1884. During all this time appellant city never objected to such use of said 10-foot strip as a part of said lots. Under the various conveyances of said lots 1 and 2 the successive grantees, including appellant Weiss, took possession of said 10-foot strip to said fence line, and have at all times maintained such possession without objection from the city. The description in the deed to Weiss was intended by the parties to the deed to cover as a part of the lots said 10-foot strip, the southwest corner of said land being the corner made by the intersection of the east line of East street and the north line of Massachusetts avenue, as originally indicated in the original plat of outlot 41, and said Weiss took possession of said strip, and still holds such possession. The court specifically found that said 10-foot strip was not dedicated to the city as a part of the highway; that the same was never accepted by the city as a part of the highway; and that said city never at any time or in any manner or extent possessed, controlled, or used the same as a part of the highway, or for any other purpose. The last finding of the court is as follows: “That the parties have, by agreement, excluded all questions from the issues and trial herein, except the question as to whether said ten (10) foot strip is a part of a public highway of the city, or whether the same is a part of said lots, and conveyed as such to said Weiss, reserving all...