Erwin v. Cent. Union Tel. Co.

• Decision Date: 24 September 1897
• Citation: 148 Ind. 365,47 N.E. 663
• Parties: ERWIN v. CENTRAL UNION TEL. CO. et al.
• Court: Indiana Supreme Court

148 Ind. 365

47 N.E. 663

ERWIN

v.CENTRAL UNION TEL. CO. et al.

Supreme Court of Indiana.

Sept. 24, 1897.

Petition for rehearing. Overruled.

For former opinion, see 46 N. E. 667.

HACKNEY, J.

The appellant insists that in connection with the allegations of his complaint we should have considered, from judicial notice, that pursuant to several early acts of the legislature the property, lots, and street in question were located, platted, and dedicated in common, and from a single tract, by commissioners of the state, whose plats appear of record in the office of the secretary of state. Were we to accept judicial notice of the occurrences mentioned, they would be no stronger than an allegation that over 65 years ago the fee in the street attached to that in the lots by reason of a conveyance of the lots to the appellant's most remote grantor. This would be far less than an allegation of present ownership. A right dependent upon present ownership, it has often been held, is not alleged by alleging an ownership at a time past. Wintermute v. Reese, 84 Ind. 308;Brown v. Brown, 133 Ind. 476, 32 N. E. 1128, and 33 N. E. 615;Craig v. Bennett, 146 Ind. 574, 45 N. E. 792. In that event the complaint would be subject to the objection made against it in the original opinion (46 N. E. 667), that it would not allege the appellant's ownership of the fee in the street or sidewalk at the time he sought to enjoin the acts of the appellees. Nor are we impressed that this omission is supplied by a recital allegation that the appellees were about to deprive the appellant of the legal right to employ the sidewalk for subterranean vaults and store rooms. Material facts, essential to the existence of a cause of action, must be alleged directly, and not by way of recital. Jackson School Tp. v. Farlow, 75 Ind. 118;Shirk v. Mitchell, 137 Ind. 185, 36 N. E. 850;Railway Co. v. Kendall, 138 Ind. 313, 36 N. E. 415;State v. McCormick, 141 Ind. 685, 40 N. E. 1089. We are fully satisfied that our original conclusion was correct. The petition is overruled.