Griffith v. Neff

• Decision Date: 16 March 1964
• Docket Number: No. 19924,No. 2,19924,2
• Citation: 135 Ind.App. 674,196 N.E.2d 757
• Parties: Carl GRIFFITH and Glida Griffith, Appellants, v. Vernal W. NEFF, Frances E. Knight, Milton A. Knight, Garnet Krebs and B. Cecelia Krebs, Appellees
• Court: Indiana Appellate Court

Page 757

196 N.E.2d 757

135 Ind.App. 674

Carl GRIFFITH and Glida Griffith, Appellants, v. Vernal W. NEFF, Frances E. Knight, Milton A. Knight, Garnet Krebs and B. Cecelia Krebs, Appellees.

No. 19924.

Appellate Court of Indiana, Division No. 2.

March 16, 1964.

George R. Tolen, Jr., Shelbyville, for appellants.

Brunner, Brown & Brunner, Shelbyville, for appellees.

MOTE, Judge.

This is an appeal from a judgment and decree quieting the title to an easement twelve (12) feet in width, over a certain tract of land owned by appellants and located in the city of Shelbyville. The judgment and decree also required appellants to remove any obstruction placed upon said easement and enjoined the transfer in the future of appellees' established rights. The issues were presented by complaint and answer. The trial was had to the court, without jury. Upon the entry of the judgment a motion to modify the same was filed and overruled.

Motion for new trial was presented and overruled, after which this appeal was brought.

Appellants assigned four (4) errors but in their brief argue only two, which are:

(1) Overruling of appellants' motion for new trial.

(4) Overruling appellants' motion to modify the judgment.

In their argument appellants present but three specifications of error under their motion for new trial, as follows:

Specification 1. The finding of the court is not sustained by sufficient evidence. Ground 1. Motion for new trial.

Specification 2. The finding of the court is contrary to law. Ground 2. Motion for new trial.

Specification 3. Overruling appellants' motion to modify the judgment. Ground No. 6 and Ground No. 7 through 21. Motion for new trial.

Specification No. 1, to-wit: the finding of the court is not sustained by sufficient evidence, raises the question as to whether there is substantial evidence of probative value which supports the finding. Specification No. 2, which is that the finding is contrary to law, under modern decisions, does present a question, inasmuch as the word 'finding' and the word 'decision' generally may be considered to have the same import on appeal.

Appellants have grouped Specification No. 1 and No. 2 in their argument, and have discussed (1) the elements necessary to establish prescriptive right; (2) adverse use; (3) continued and uninterrupted use; (4) claim of right; and (5) knowledge and acquiescence, citing authorities upon these subjects.

Appellants contend that the record discloses a complete lack of evidence which would tend to show either an adverse character of appellees' use, or continuous use for the requisite statutory period of time. Both of these elements are essential prerequisites to an establishment of a right by prescription. DeShields et al. v. Joest et al. (1941), 109 Ind.App. 383, 34 N.E.2d 168.

Appellants base the contention as to lack of adversity on the proposition that the use was with permission. Appellants, in support of their proposition, assert that there can be no adversity in using the land of another by merely passing over it, and they therefrom conclude that the use was permissive. We must disagree with this contention. Open and continuous use of another's land with knowledge on the part of the owner, is presumed to be adverse to the owner. See Smith et al. v. Ponsford (1915), 184 Ind. 53, 56, 110 N.E. 194. This is a rebuttable presumption, but the owner, in this case the appellant, must overcome the presumption. See 4 Tiffany, Real Property, § 1196 a (3 Ed.1939). Appellants have failed to do so.

Appellants further contend that the use of the property was not shown to be continuous for the requisite statutory period. We are of the opinion that there is sufficient evidence of probative value to establish the necessary element of continuity of use. It is not necessary that the use be exercised constantly and without intermission. DeShields et al. v. Joest et al., supra; see also Lane v. Miller and Others (1867), 27 Ind. 534.

Appellants also assert error in that the evidence does not disclose that the adverse use of appellants' land was under a claim of right. It is sufficient to say that the evidence was such that the trier of the facts could have concluded that the use was under a claim...