Echterling v. Kalvaitis

• Citation: 123 N.E.2d 465
• Decision Date: 07 January 1955
• Docket Number: No. 18540,18540
• Parties: Waldemar E. ECHTERLING and Julia M. Echterling, his wife, Appellants, v. Frank KALVAITIS and Kazimeira Kalvaitiz, his wife, Appellees.
• Court: Court of Appeals of Indiana

Page 465

123 N.E.2d 465

Waldemar E. ECHTERLING and Julia M. Echterling, his wife, Appellants, v. Frank KALVAITIS and Kazimeira Kalvaitiz, his wife, Appellees.

No. 18540.

Appellate Court of Indiana, in Banc.

Jan. 7, 1955.

Also See 126 N.E.2d 573.

William L. Travis, Palmer C. Singleton, Jr., Hammond, Travis & Tinkham, Hammond, of counsel, for appellants.

Roberts & Roberts, Lowell, Hanley & Hanley, Rensselaer, for appellees.

CRUMPACKER, Judge.

In 1889 one Edward Fisher owned the southeast and southwest quarters of the southeast quarter of section 31, township 33 north, range 8 west, in Lake County, Indiana. In 1906 the common ownership of these quarter-quarter sections of land was separated and through a series of mesne conveyances the record title to the southwest quarter of the southeast quarter of said section now rests in the appellants and title to the southeast quarter of the southeast quarter thereof rests in the appellees. In 1906 there was a barbed wire fence, running north and south ten feet west of the quarter-quarter section line, separating these two tracts of land and extending the full length thereof. The evidence is silent as to who built this fence but it was old in 1906 and its course across the land deviated from a straight line in places. The inference is strong that it was built when the two tracts were under one ownership but whether it was built to separate them under the mistaken impression that it was on the quarter-quarter section line or for other purposes is pure surmise or guess. Nor is there any evidence as to whether or not said tracts of land were sold and purchased by the subsequent owners with reference to said fence as the dividing line between them. It is clear however that from 1906 until this controversy developed it was continuously maintained albeit in a rather makeshift manner at times. The appellants also own 80 acres of land immediately south of and adjoining the appellees' land above described which was separated therefrom by a woven wire fence for half the distance, built by the appellants in 1950, and an old hedge fence for the remainder of the way. This east and west fence is on the section line and there is no dispute between the parties as to its proper location. In view of the condition of the above fences both parties agreed on the necessity of refencing but deemed it advisable to have a legal survey made pursuant to § 49-3311 et seq., Burns' 1951 Replacement, in order to save future dispute as to boundary lines. Such a survey was made in all respects in conformity to the statute and it was thereby established that a strip of land 10 feet in width, to which the appellants have record title, lies on the appellees' side of said fence. The appellants thereupon began the construction of a partition fence along the line of said survey which the appellees promptly tore down. This precipitated the present law suit which is a proceeding in equity brought by the appellants to compel the appellees, by judicial order, to construct half of all partition fences on their mutual boundary lines as determined by said statutory survey. It also seeks to enjoin the appellees from interfering with the appellants in the erection of their half of said fences and for damages suffered by reason of the appellees' alleged unlawful conduct. The appellees answered by way of a cross-complaint in which they claim title by adverse possession to the 10-foot strip between the property to which they have record title and the old north and south fence. Upon the trial of the case the court found against the appellants on their complaint and for the appellees on their cross-complaint and quieted their title to said 10-foot strip. The appellants appealed asserting that such decision is not sustained by sufficient evidence and is contrary to law.

The court seems to have ignored the issues involving the east and west fence separating the appellees' 40-acre tract from the appellants' land lying immediately south thereof. Perhaps this is justifiable in view of the fact that such boundary line is not in dispute and the appellants' remedy is completely spelled out in §§ 30-201 to 30-203, Burns' 1949 Replacement, whereby the ultimate responsibility for the construction of a partition fence on an established boundary line is placed on the township trustee in the event either owner fails or refuses to erect his portion thereof as fixed by said statute. The appellants make two assertions in this appeal. First they say that the evidence is wholly insufficient to establish a prescriptive title in appellees to the 10-foot strip of land in...