Harding v. Cowgar

• Decision Date: 17 February 1891
• Docket Number: 14,728
• Citation: 26 N.E. 799,127 Ind. 245
• Parties: Harding et al. v. Cowgar et al
• Court: Indiana Supreme Court

26 N.E. 799

127 Ind. 245

Harding et al. v. Cowgar et al

No. 14,728

Supreme Court of Indiana

February 17, 1891

From the White Circuit Court.

Judgment affirmed.

R Gregory, for appellants.

T. F Palmer, A. K. Sills, A. W. Reynolds and E. B. Sellers, for appellees.

OPINION

Coffey, J.

This was a suit by the appellees against the appellants to enjoin the obstruction of an alleged private way.

The complaint alleges, in substance, that the appellees are the owners in fee of a certain described tract of land in White county, Indiana; that they reside upon said land, and have built, use, and occupy houses and barns thereon, and cultivate said land, and raise crops thereon for the general market; that their nearest and only available market for said crops is the town of Monticello, which is within one mile of said land; that in order to reach said market it has ever been necessary that the appellees and their grantors should have a free and unobstructed passageway and road from said town to their land that the appellants own certain described land intervening between the land of the appellees and said town; that for more than twenty years last past, and continuously and uninterruptedly ever since, the appellees and their grantors have held and enjoyed their land; that they have used, claimed, and occupied, an easement and right to pass and travel, by a well-defined road, over the lands of the appellants, from said town to appellees' land for more than twenty years by wagons, and every and all usual methods of conveyance, unobstructed by gates, fences, or other hindrances, adversely to any claim of ownership by the appellants or their grantors, or any other person; that said roadway and passage is clear and distinct, and for said period of more than twenty years has existed, as it now exists, thirty feet wide; that in defiance of the appellees' rights and easement appellants are threatening to, and are about to, close up and obstruct said way and passage, and hinder and prevent appellees from passing to and from their land, as they have long been accustomed to do, by building a fence, or gate, across the roadway; that appellees have not procured, and can not procure, any other means of access or egress to and from their land; that on the 4th day of May, 1835, one John Rothrick owned all the real estate described in the complaint in fee simple, and on said day he conveyed to Robert Rothrick the real estate upon which the appellees reside, and that appellees derive their title thereto from conveyance from the said Robert Rothrick and his grantees; that said John Rothrick afterwards conveyed the real estate now owned by the appellants; that for more than twenty years last past the appellees and their grantors have enjoyed, as of right, and without interruption, said way from their land over the land of the appellants to a public street in the town of Monticello, at all times, for the more convenient occupation of their land, and without said way there was, and is, no way of reaching the land of the appellees, and that said road is the way over the land of the appellants that will least damage said land.

The appellants filed a motion to compelthe appellees to paragraph the above complaint, upon the ground that it contained two separate and distinct causes of action, which motion was overruled by the court.

They also filed a motion to compelthe appellees to make their complaint more specific in this, to wit: To set out the beginning, course and termini of the private way named in the complaint, but this motion was also overruled by the court.

The appellants then filed a joint answer consisting of four paragraphs, the first being a general denial.

The court sustained a demurrer to the second, third and fourth paragraphs of the answer and the appellants excepted.

A trial of the cause, by the court, without the intervention of a jury, resulted in the granting of a perpetual injunction as prayed in the complaint, from which this appeal is prosecuted.

We do not think the court erred in overruling the motion of the appellants to...