Haas v. Olson

• Decision Date: 02 April 1940
• Docket Number: 27296.
• Parties: HAAS v. OLSON.
• Court: Indiana Supreme Court

26 N.E.2d 35

217 Ind. 50

HAAS v. OLSON.

No. 27296.

Supreme Court of Indiana

April 2, 1940

Appeal from Lake Circuit Court; T. Joseph Sullivan, Judge.

Bruce & Bruce, of Crown Point, for appellant.

Frank B. Pattee and Wendell C. Hamacher, both of Crown Point, for appellee.

SHAKE Chief Justice.

Appellant and her husband, now deceased, owned a tract of land adjacent to Cedar Lake, in Lake County, Indiana. In 1921 and 1925 they subdivided parts of said tract into lots, retaining title, however, to an unplatted area between the subdivisions and the lake. Thereafter appellee's husband, now deceased, purchased from the appellant and her husband four of said lots and an adjoining unplatted parcel of land, all of which is now owned by the appellee, and upon which valuable improvements have been erected. The deed by which appellee's real estate was conveyed to her husband contained the following provision: 'Grantors also grant unto the grantee access to and the use of the private beach now on grantors land fronting upon Cedar Lake and to the pier on the beach of said lake on said lands and grantee agrees to pay his proportionate share of the expense of maintaining said pier; grantees rights of access to and use of said private beach and pier are hereby granted for the use and benefit of grantee, his grantees, successors in interest and to run and be held and retained by him and his successors as a covenant running with the land.'

The third paragraph of appellee's complaint, upon which the case was tried, alleged that the appellant had obstructed appellee's access to the lake by means of fences, a bath house, and a breakwater erected on that part of the appellant's land lying between the appellee's property and the lake, in violation of the said covenant contained in said deed. There was a prayer for a mandatory injunction against the appellant requiring her to remove said obstructions and to perpetually enjoin her from interfering with appellee's access to and use of the beach of said lake.

The appellant unsuccessfully demurred to the third paragraph of complaint, and thereafter answered in general denial and with two affirmative paragraphs. The second paragraph of answer alleged that the appellee had consented to and acquiesced in the construction of the breakwater referred to in the complaint. The third paragraph stated, by way of argumentative denial, that the appellant had not precluded the appellee from access to the lake over the appellant's property, and that the appellee had a way of ingress and egress to the shore of the lake over public streets. The appellant also filed a cross-complaint to quiet her title to her land situated between the appellee's property and the lake against all rights claimed therein by the appellee. The case was tried by the court and resulted in a finding for the appellee. The judgment required the appellant to remove the obstructions complained of and enjoined her from interfering with the right of the appellee to the use of a way from her property to the beach of the lake over appellant's land.

The errors properly assigned assert in substance that the demurrer to the third paragraph of complaint was improperly overruled, that appellant was denied a jury trial, and that the decision of the court is not sustained by sufficient evidence and that it is contrary to law. The alleged error with respect to the ruling on the demurrer is not sufficiently presented by the appellant's brief. There has been no attempt to point out any specific defects in the complaint in that part of the brief devoted to propositions and authorities, and we have found none. The memorandum to the demurrer contains six specifications, but none of these have been otherwise referred to in the appellant's brief. We are unable to determine the nature of the objection to the third paragraph of complaint which the appellant desires to have us consider.

The record discloses that on the 6th day of June, 1939, this cause was pending in the Poter Circuit Court, and...