Collett v. The Board of Commissioners of Vanderburgh County

• Decision Date: 11 May 1889
• Docket Number: 14,699
• Citation: 21 N.E. 329,119 Ind. 27
• Parties: Collett v. The Board of Commissioners of Vanderburgh County
• Court: Indiana Supreme Court

21 N.E. 329

119 Ind. 27

Collett v. The Board of Commissioners of Vanderburgh County

No. 14,699

Supreme Court of Indiana

May 11, 1889

From the Vanderburgh Circuit Court.

The judgment is affirmed, with costs.

J. Jump, R. N. Hudson, C. F. McNutt, J. G. McNutt and F. A McNutt, for appellant.

A Gilchrist, C. H. Butterfield, D. B. Kumler and C. A DeBruler, for appellee.

Mitchell J. Coffey, J., did not participate in the consideration of this case.

OPINION

Mitchell, J.

This is an appeal from a judgment rendered against Josephus Collett, in an action of ejectment brought by him against the board of commissioners of Vanderburgh county. The real estate in controversy consists of four lots in the city of Evansville, upon which the board of commissioners were proceeding to erect a court-house, and comprises what was formerly a portion of the property acquired by the State upon which to locate and construct a canal. Prior to 1847, under various acts of the Legislature, the State engaged in the construction, and operation to some extent, of a water-way, called the Wabash and Erie Canal, the design of which was to connect the waters of Lake Erie, at Toledo, Ohio, with those of the Ohio river, at Evansville, Indiana. After the project had been carried to partial completion by the State, for reasons which need not be repeated here provision was made by an act of the General Assembly, approved January 19th, 1846, for the organization of a corporation known as "The Board of Trustees of the Wabash and Erie Canal," to which corporation the Governor, on the 31st day of July, 1847, pursuant to authority conferred by the above mentioned act, conveyed all the right, title and interest of the State in and to the canal and all its appurtenances. The property in controversy was a portion of the bed of the canal, and was transferred by the above mentioned conveyance. There was evidence tending to prove that after being used for purposes of navigation until about the year 1864, the canal was abandoned as such, at and in the vicinity of Evansville and at many other places, and that in a few years later it was abandoned entirely. It extended through the city of Evansville a distance of a mile and a half, traversing a number of the public streets. Commencing in 1865, the city authorities proceeded to fill up the canal at the various street crossings, and as early as 1867 it was filled at all, or nearly all, the crossings, and the canal was thus obliterated at those points. Water collected and became stagnant in the intermediate portions, which resulted in the enactment of an ordinance by the city requiring the owners of the lots to fill up the canal, which threatened the public health. At the May term, 1866, this court decided that the State acquired only an easement or servitude in the lands over and upon which the canal was constructed, and that the fee continued in the former owners. Edgerton v. Huff, 26 Ind. 35. Thereupon those who seemed to be the owners of the fee of the lots in controversy proceeded to fill up the canal, completing the filling, at a cost of about $ 2,000 a lot, in the year 1867. Thereafter the lots were regularly assessed for taxation against the several owners, until the year 1873, when the county of Vanderburgh acquired the title by regular conveyances from those in possession, and who had title as above.

The plaintiff claims title through a master's sale made in 1877, pursuant to a decree of the United States circuit court for the District of Indiana. In the bill of complaint upon which the decree under which the plaintiff claims was rendered, it was made to appear to the court that the corporation to which the canal and its appendages had been transferred had become insolvent, and that the canal had been abandoned and that the property was wasting in decay. Upon the subject of the abandonment of the canal, the bill contained the following averment, viz.:

"In consequence of inadequate water supply and the destruction, several times repeated, of the reservoirs, or water-basins, on the portion of the canal south of Terre Haute, navigation was but feebly maintained on that part of the canal for about two years, and about the year 1860, in consequence of such disabilities and the railway competition drawing off the traffic, the defendant, from want of means, was forced to and did abandon all further commerce and business on that portion of the canal south of Terre Haute, and for about ten years last past the water has been drawn from the bed on that portion, and the same has not been and can not be used as a public highway, as contemplated in the said acts and by the acts of Congress aforesaid."

The plaintiff seeks to maintain his title to the lots upon the theory that the State acquired the fee in all the lands appropriated for canal purposes, as was ruled by this court in Water Works Co. v. Burkhart, 41 Ind. 364, in which Edgerton v. Huff, supra, was overruled, and that through the conveyance by the Governor to the board of trustees of the Wabash and Erie Canal, and the master's sale and conveyance under the decree above mentioned, he is now invested with the title acquired by the State. This suit was commenced February 14th, 1888.

The board of commissioners gave evidence tending to prove that the county of Vanderburgh, and its grantors, had been in the open, continuous and exclusive possession of the lots in dispute, under a claim of title, during all the time since the year 1866, and the contention on its behalf is, that the county has thereby acquired an indefeasible title in fee simple by prescription.

The argument on the appellant's behalf is to the effect, that the board of trustees of the Wabash and Erie Canal took and held the title to the canal and its appurtenances until the master's sale, in 1877, in trust for the benefit of the people of the State, to maintain it as a public highway and means of intercommunication, that the filling up of the canal by the grantors of Vanderburgh county was nothing more than the obstruction of a public highway, which constituted a nuisance, and that no prescriptive right could arise out of an indictable offence. Hence, the argument is, the statute of limitations did not commence to run until the canal was sold in 1877. It is contended, moreover, that the evidence does not show such an open, visible, continuous and exclusive possession, under claim and color of title, as is essential to create title by prescription.

If the assumption that the canal continued, to all intents and purposes, a public highway, until it was finally dismembered and sold out in 1877, had any substantial basis to rest upon, there would be force in the contention that the statute of limitations was not effectual to confer title to those who were in the adverse occupancy of the property in question.

If the canal had remained a great public highway, then the well established principle that no one can acquire an easement or right, hostile to...