DeShields v. Joest

• Decision Date: 27 May 1941
• Docket Number: 16528.
• Citation: 34 N.E.2d 168,109 Ind.App. 383
• Parties: DESHIELDS et al. v. JOEST et al.
• Court: Indiana Appellate Court

34 N.E.2d 168

109 Ind.App. 383

DESHIELDS et al. v. JOEST et al.

No. 16528.

Appellate Court of Indiana, in Banc.

May 27, 1941

William D. Hardy, of Evansville, for appellants.

Ollie C. Reeves, of Evansville, for appellees.

STEVENSON Judge.

The appellees brought this action against the appellants to enjoin the obstruction of a highway.

The complaint was in two paragraphs. The first paragraph of complaint alleged an obstruction of a public highway, and the second paragraph of complaint alleged an obstruction of an easement, consisting of a right-of-way over and across the lands of the appellants. Both paragraphs of complaint asked for an injunction restraining the appellants from obstructing this roadway.

Upon the issues formed by an answer in general denial, the case was submitted to the court for trial. The court, after hearing the evidence, found for the appellants on the first paragraph of complaint, and found for the appellees on the second paragraph of complaint. Upon this finding, judgment was entered in favor of the appellees, and the judgment ordered that the appellants be permanently enjoined from interfering with such roadway, and it was further ordered that the appellants should remove and take down the obstructions placed by them across such roadway. Motion for new trial was filed and overruled and this appeal has been perfected. The error assigned on appeal is the alleged error in overruling the appellants' motion for a new trial.

Under this assignment of error, the appellants contend that the finding of the court is not sustained by sufficient evidence and is contrary to law. It is the contention of the appellants that the evidence is wholly insufficient to establish a right-of-way by prescription across the appellants' land.

The evidence discloses that at the time of the bringing of this action, the appellees were the owners of forty acres of real estate in Vanderburgh County, Indiana. This real estate was located south of state highway number 62, and east of a county road running south from state highway number 62, known as the Selzer road. This real estate lies about one-quarter of a mile back from the Selzer road. To reach it, it is necessary to cross the lands owned by other persons. The appellants own the land adjacent to the Selzer road, and at the time this land was purchased by the appellees in 1932, a well defined roadway extended from the Selzer road across the appellant's lands, and to the appellees' real estate. No gates obstructed this roadway at the time the appellees purchased the real estate, and the gates in question were not erected until about one month prior to the bringing of this action. There is no other roadway near the appellees' land, and this road in question is the only means of egress and ingress from the appellees' land to the public highway. The evidence discloses that the appellees, and former owners of the land, and others seeking egress and ingress thereto, had used this passageway for more than fifty years, and there is evidence that no gates or obstructions had ever been erected until the appellants erected the gates involved in this law suit.

There is evidence that in the beginning this road extended from the Selzer road on beyond the lands of the appellees, and again intersected the Lower Mt. Vernon road. The appellees, and the owners of their real estate before them, and the public, used this roadway, and this right to use was never denied until shortly before the bringing of this action. The appellees contend that they have acquired this right-of-way by prescription, and contend that the evidence is sufficient to sustain the court's finding and judgment.

The rules of law, with reference to easements by prescription are well established.

"One may acquire an easement in the lands of another by prescription. To establish the existence of such easement he must show continuous, uninterrupted, adverse use, under claim of right, and with the knowledge and acquiescence of the owner of the land. By 'continuous and uninterrupted use' is meant use not interrupted by the act of the owner of the land, or by voluntary abandonment by the party claiming the right. It is not necessary that the use should have been continuous in the person asserting the right. It will be sufficient if such use has been continuous in him and those

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