Columbia Realty Corp. v. Harrelson
| Decision Date | 27 March 1973 |
| Docket Number | No. 3--872A49,3--872A49 |
| Citation | 293 N.E.2d 804,35 Ind.Dec. 598,155 Ind.App. 604 |
| Court | Indiana Appellate Court |
| Parties | COLUMBIA REALTY CORPORATION, Plaintiff-Appellant, v. William M. HARRELSON et al., Defendants-Appellees. |
Warren E. McGill, Stephen A. Seall, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for plaintiff-appellant.
William I. Garrard, Rasor, Harris, Garrard & Lemon, Warsaw, Max E. Reed, Widaman, Bowser, Reed & Geberin, Warsaw, for defendants-appellees.
The Columbia Realty Corporation (Columbia) commenced the proceedings below to obtain an injunction to prevent the obstruction of and interference with the rights of the public and Columbia to use a forty foot wide strip of land which runs in an easterly-westerly direction from Indiana State Road 13 A to the water's edge of Lake Wawasee. The Harrelsons filed a cross-complaint to quiet title to the land and requested, by motion, that Crow's Nest, Inc. (Crow's Nest) be made a party defendant. Crow's Nest then filed a cross-complaint by which they sought to quiet title to the same tract of land.
The case initially proceeded to trial by the court without the intervention of a jury in September of 1964. After hearing oral argument, the trial court took the case under advisement but no decision was made for approximately five and three-fourths years. Thereafter, the Clerk of the Kosciusko Circuit Court notified the Supreme Court pursuant to Rule TR. 53.1, IC 1971, 34--5--1--1, and in June of 1970, the Supreme Court appointed a Special Judge to hear the case.
The Special Judge, in the pretrial order, ordered a certified transcript of all the evidence at the original trial which would be considered as evidence in the second trial. The case was finally submitted to the trial court without the intervention of a jury in November of 1971, which resulted in a judgment entered in favor of Crow's Nest and against Columbia and the Harrelsons. All costs were assessed againt Columbia. Only Columbia filed a Motion to Correct Errors and, when said motion was overruled, it perfected this appeal.
The issues presented for review are whether the decision of the trial court is (1) contrary to law, (2) not supported by sufficient evidence upon all the necessary elements of defense, and (3) contrary to the evidence. Columbia also raises the issue of whether the trial court erred in assessing all costs against Columbia alone.
The controversy centers on the location and nature of a forty foot wide strip of land running in an easterly-westerly direction from Indiana State Road 13 A on the east to the water's edge of Lake Wawasee on the west. The strip is bounded on the north side by lot 43 in the Waveland Beach Addition. Waveland Beach is located in Section 13, Township 34 North, Range 7 East, Kosciusko County (Section 13). Immediately south of Section 13 and adjacent thereto is Section 24, wherein Crow's Nest owns real estate in both the northwest and northeast quarters. The south line of Section 13 is the north line of Section 24. The Harrelsons own lot 43 in Waveland Beach, said lot being the southern most lot in Section 13.
A portion of the forty foot wide strip had been used as a roadway since approximately 1894. The strip was a part of or connected with a roadway which ran from said strip north along the bank for approximately two-thirds of the Waveland Beach plat. On 1914, when Waveland Beach was platted, the road running along the bank was vacated by action of the Board of County Commissioners. After 1914 the strip was not used as a highway.
From 1914 until around 1938, the forty foot strip was covered with sumac, as was lot 43. The bank had become so steep that the lake was no longer accessible from the road. In 1938 or 1939, the then owners of lot 42 cleared off the entire area from their lot to Crow's Nest which was covered with sumac. There was no path or anything else over the entire area except sumac and weeds from Highway 13 A to the bank and even down the bank.
In 1947 Frederick Banta purchased lot 43 and at that time the area just south of the lot was overgrown with weeds and was unused in the year 1947. Mr. Banta had the area cleared and maintained it as if it was his own property. Visitors would occasionally park their automobiles on the area. Mr. Banta's successors continued to maintain the forty foot strip as part of their yard and stored a float there.
From 1954 Crow's Nest maintained the forty foot strip as part of its property in Section 24. It has continued said maintenance to the present time, except for that area from the bank to the water's edge of Lake Wawasee, which has been in an overgrown state since 1914.
The first issue presented for determination is the location of the forty foot wide strip of land. Several surveys were introduced by Columbia, at least one of which purportedly shows all of the forty foot wide strip as being in Section 13. Also introduced into evidence was the Plat of Waveland Beach as recorded on June 20, 1914, the legal description of said plat being as follows:
'Beginning at a point on the West line of Section 13, Township 34, North, Range 7 East, 708 feet south of the quarter post; thence East to the West line of the public highway; thence in a Southeasterly direction along the West line of said highway to the South line of the North Half of the Southwest Quarter of Section 13; thence East along the said South line 193 feet to an iron pipe; thence South 62 degrees 22 minutes West 3.3 feet to the East line of the proposed highway; thence South 47 degrees 38 minutes East 76.95 feet; thence South 32 degrees 54 minutes East 573.51 feet; thence South 45 degrees 36 minutes East 241.35 feet; thence South 20 degrees 33 minutes East 446.1 feet; thence South 9 degrees 52 minutes East 175.8 feet to the North line public highway on the South line of said Section 13; thence West along the North line of said highway to the water's edge of Lake Wawasee; thence in a northwesterly direction along the water's edge to the West line of said Section 13; thence North to the Place of Beginning.' (our emphasis)
Although the drawing of the Plat includes the forty foot wide strip, the plat of Waveland Beach reveals that the south line of the plat is the north line of the public highway on the south line of Section 13. The south line of Waveland Beach is coterminous with the south line of Section 13.
The platting of Waveland Beach and the vacation and relocation of the public highway established by use were presented to the Board of County Commissioners during July of 1914. Plaintiff's exhibit 2, which is the vacation and relocation petition for the county road, was prepared and presented by the same attorney who handled the platting. Plaintiff's exhibit 2 vacated the highway previously existing between the platted lots and the water's edge of Lake Wawasee and established, by order of the Board of County Commissioners, a highway on the east side of the lots of the plat and also a highway south of lot 43. The landowners petitioned for a new highway to be located as follows:
'Beginning at a point 193 feet east of the South line of the North Half of the Southwest Quarter of Section 13, Township 34 North, Range 7 East, from the West side of a public highway crossing in a northerly and Southerly direction said South line and South 62 degrees 22 minutes West 3.3 feet hereafter designated as 'Staeting Point'; Thence South 47 degrees 38 minutes East 76.95 feet; thence South 32 degrees 54 minutes East 573.51 feet; thence South 45 degrees 36 minutes East 51.35 feet; thence South 20 degrees 33 minutes East 446.1 feet; thence South 9 degrees 52 minutes East 175.8 feet to the North line of the public highway on the South line of said Section 13; thence West along the continuation of the North line of said highway to the water's edge of Lake Wawasee 192.8 feet to the top of bank of said lake and 50 feet more or less from said top of bank to said water's edge.' (our emphasis)
It will be noted that the north line of the public highway is the south line of Section 13 and the south line of the plat of Waveland Beach. These several legal descriptions establish that the forty foot wide strip is located south of Section 13 and this is reinforced by the vacation of the highway which ran along the bank of Lake Wawasee. The vacation was to commence on the south section line of Section 13 and was to proceed in a northwesterly direction following the top of the bank of Lake Wawasee. If any of the forty foot wide strip was located in Section 13 it would have been vacated from a point 65 feet west of the water's edge east to the water's edge.
This was clearly not contemplated by the parties at that time since they had just finished establishing the highway south of Section 13.
As against the specific language of the plat of Waveland Beach and the proceeding before the Board of County Commissioners, Columbia introduced several surveys which fixed the forty foot strip in Section 13.
The fact that the drawing of the plat of Waveland Beach includes the forty foot wide strip does not conclusively establish that the strip is within the plat. The legal description of the plat shows that, in fact, the strip was not meant to be included and could not have been included since it was not within Section 13.
There was substantial evidence from which the trial court could conclude that the forty foot strip as it presently exists was the area described to the south of the plat of Waveland and the contemplated highway established by the proceeding before the Board of County Commissioners.
Since we have decided that the trial court did not err in locating the forty foot wide strip of land in Section 24, we must now determine the nature and character of said strip. The precise issue is whether all or a portion of the strip of land has ceased to be a public roadway, either by application of the...
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