Hutchinson v. Worley, 18899

• Decision Date: 12 December 1958
• Docket Number: No. 18899,18899
• Citation: 129 Ind.App. 157,154 N.E.2d 389
• Parties: Ruth E. HUTCHINSON, Appellant, v. Thomas WORLEY and Sallie Worley, Appellees.
• Court: Indiana Appellate Court

Page 389

154 N.E.2d 389

129 Ind.App. 157

Ruth E. HUTCHINSON, Appellant, v.Thomas WORLEY and Sallie Worley, Appellees.

No. 18899.

Appellate Court of Indiana, In Banc.

Dec. 12, 1958.

Arthur D. King, Dobbins, King & Cline, Columbus, for appellant.

Lealand West, Scottsburg, for appellee.

COOPER, Judge.

This action was instituted by the appellees against the appellant, seeking to have declared a right-of-way in favor of appellees across appellant's land and to perpetually enjoin appellant from closing the same or interfering with appellees' free use thereof.

The complaint was based upon the theory that an easement by prescription had been established by appellees across appellant's land and that the appellant had obstructed said easement by locked gate, or gates, and appellees ask for an injunction restraining the appellant from obstructing said easement or road.

Appropriate answer closed the issues, and the case was submitted to the court for trial.The court, after hearing the evidence, found for the appellees.Upon this finding, judgment was entered in favor of the appellees; and the judgment ordered that the appellant be perpetually restrained and enjoined from preventing the appellees the use and enjoyment of the right-of-way described in their complaint, subject to the maintenance, by appellant, of gates at either end of such right-of-way.

Appellant filed a motion for a new trial, and the same was overruled, and this appeal has been perfected.

The error assigned on appeal is the alleged error of the trial court in overruling appellant's motion for a new trial.

Under this assignment of error, the appellant contends that the decision of the court is not sustained by sufficient evidence, and the decision of the court is contrary to law.It is the contention of appellant that the evidence is wholly insufficient to establish a right-of-way or easement by prescription across appellant's land in favor of appellees.

The evidence most favorable to the appellees shows that in the year of 1954, appellees purchased what the parties commonly referred to as the Company Farm, which property is located immediately west and adjacent to certain property, commonly referred to by the parties as the Gullett Farm, in Washington County, Indiana, which Gullett Farm became the property of appellant by right of survivorship in the year of 1949.

That more than fifty years ago, a ferry operated across the White River, the southerly terminus of which was located approximately 200 feet west of the east property line of the Gullett Farm.That a road used by the public was established across the northeast corner of the Gullett Farm, starting at a point approximately 300 feet south from the south bank of the White River on the east property line of the Gullett Farm, thence southwest 185 feet, thence northwesterly at right angles about 200 feet to the southerly terminus of said ferry, which road, as above described, was known as the Gullett Ferry Road.

Also, over fifty years ago the ferry ceased operation, and the public, desiring to go to and from the Company Farm, used the above-described Gullett Ferry Road to where the ferry formerly operated, thence southwesterly and westerly along the south bank of the White River to the Company Farm and thereon west.That in the year of 1909, the owner of the Gullett Farm granted an easement to the owner of the Company Farm for the above-described road along the south bank of the White River, and, in the year of 1924, the owner of the Company Farm quit-claimed his interest in said easement back to the owner of the Gullett Farm.

Also during the period that the above easement was in force, the owner of the Company Farm never objected to the use of said easement by the general public and said road was used as the principal means of ingress and egress across the northerly boundary of the Gullett Farm to and from the Company Farm, not adverse to the owner, or owners of the Gullett Farm, but adverse to the owner or owners of the Company Farm, who, from 1909 to 1924 owned said easement across the Gullett Farm.

That during all of the time above-mentioned, there existed a private road that started at a point where the Gullett Ferry Road turned northwesterly at right angles, which point was about 300 feet south of the south bank of the White River, on the east property line of the Gullett Farm and about 185 feet southwest from said point on the east property line of the Gullett Farm, thence south and westerly about sixty rods to the house located on the Gullett Farm.From that point, said road was little more than a path or a passageway meandering westerly and northerly across the west part of the Gullett Farm to the east property line of the Company Farm.The above-described private road is the road in controversy.

The above-described private road was used by the owners and tenants of the Gullett Farm, the owners and tenants of the Company Farm, and the general public; however, the evidence shows that it was seldom used by the owners or tenants of the Company Farm until the year of 1924, at which time the White River washed out part of the road that lead from the Gullett Ferry Road along the south bank of the White River to the Company Farm, and, as such road was in a precarious condition, the road in controversy became the main traveled road to the Company Farm, and was used by the owners and tenants of the Gullett Farm as well as the general public to go to and from points on the Gullett Farm, all without any objections on the part of the owners and tenants of the Gullett Farm until the year of 1942, at which time the owners of the Gullett Farm established and erected gate, or gates, across said road in controversy, and locked the same and issued keys to those permitted the use of said road.This condition continued to 1954, at which time the lower court issued a restraining order, restraining appellant from preventing the free use of said road by the appellees.

To establish the existence of a prescriptive right to an easement or right-of-way across the land of another, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted, adverse use for twenty years under claim of right, or it must show such continuous adverse use and with the knowledge and acquiescence of the owner of the servient land.

It must be further found, as a matter of law, that such use was so open, hostile, notorious and under such claim of right, that the owner of the servient land had actual knowledge or should have had actual knowledge of such facts, and having such knowledge acquiesced in such use of his land, and having acquiesced in such use of his land for twenty years, he would be thereafter estopped from denying such use of his land.Null v. Williamson, 1906, 166 Ind. 537, 78 N.E. 76;DeShields v. Joest, 1941, (T.D.1941), 109 Ind.App. 383, 34 N.E.2d 168;Lucas v. Rhodes, 1911, 48 Ind.App. 211, 94 N.E. 914;Monarch Real Estate Co. v. Frye, 1922, 77 Ind.App. 119, 133 N.E. 156;Palmer v. Wright, 1877, 58 Ind. 486;Davidson v. Nicholson, 1877, 59 Ind. 411;McCardle v. Barricklow, 1879, 68 Ind. 356;Hill v. Hagaman, 1882, 84 Ind. 287;Parish v. Kaspare, 1886, 109 Ind. 586, 10 N.E. 109;Fankboner v. Corder, 1890, 127 Ind. 164, 26 N.E. 766;Harding v. Cowgar, 1890, 127 Ind. 245, 26 N.E. 799;Bales v. Pidgeon, 1891129 Ind. 548, 29 N.E. 34;Davis v. Cleveland,...