Kline v. Dowling
| Decision Date | 28 November 1911 |
| Docket Number | 21,966 |
| Citation | 96 N.E. 579,176 Ind. 521 |
| Parties | Kline v. Dowling et al |
| Court | Indiana Supreme Court |
From Newton Circuit Court; C. W. Hanley, Judge.
Suit by Charles M. Kline against Anna M. Dowling. From a decree for plaintiff, he appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
Herman C. Rogers and Dallas C. Rogers, for appellant.
William Darroch, for appellees.
In 1893 Peter Kline died testate, the owner of 120 acres of farm land in Newton county. By his will he devised an estate therein to his wife, Elizabeth Kline, for life, and at her death an estate therein to his daughter, appellee Anna M. Dowling, for the remainder of her life, with remainder in fee to the children of Anna M. Dowling.
In 1897, the widow, Elizabeth Kline, conveyed her life estate to Peter Kline, who, in 1901, conveyed it to appellant, who has since occupied it and received the rents and profits thereof.
In 1905, as the result of certain legal proceedings, a partition fence was constructed between a portion of this land and other land lying south thereof, owned by one Whaley. This fence was built under a contract let by the township trustee under §§ 7378, 7379 Burns 1908 Acts 1897 p. 184, §§ 2, 3. At the same time a partition fence was built under a contract let by the trustee on the line dividing this land and the land of one Sell, on the west side thereof. The contract price for these fences was $ 67 and $ 175, respectively.
In April, 1908, a petition was filed in the court having jurisdiction thereof, to construct a tile drain which affected the Kline land, and said land was assessed $ 900 for the construction thereof. The land was also, about the same time, assessed $ 16.20 for the construction of another tile drain.
Appellees Carrie Dowling, Annie Dowling, Thomas Dowling and William Dowling, Jr., are the children of appellee Anna M. Dowling.
In his complaint against appellees, appellant alleges that the contractor foreclosed his liens for constructing the fences, and that he was compelled to pay them; that the partition fences erected are of heavy wire, fastened to heavy wooden posts, and are so constructed that they are a lasting and permanent improvement to the real estate; that the ditches are permanent and lasting improvements; that the widow, Elizabeth Kline, is sixty-six years of age; that defendants refuse to pay any portion of the cost of the fences and drains, and he prays for a decree apportioning the cost of the several improvements among the owners in proportion to their respective benefits, and that he have judgment against defendants for their proportionate shares thereof.
The court made a special finding of facts, and stated its conclusions of law thereon. Judgment was entered in favor of defendants in the matter of the cost of the fences, and it was adjudged that appellant should pay half the ditch assessments, and appellee Anna M. Dowling should pay three-fourths of the remaining half, and her children the balance thereof. From this judgment plaintiff appeals. The court overruled appellant's motion for a new trial, the grounds of which are that the decision of the court is not supported by sufficient evidence and is contrary to law.
Appellant has assigned as errors the overruling of the motion for a new trial, and that the court erred in each conclusion of law.
It is contended by counsel for appellant that appellees should be required to bear a portion of the burden of the cost of erecting the fences, and that appellant should not be charged with as much as half the cost of the tile drains.
An exception to a conclusion of law admits, for the purpose of the exception, that the facts were correctly and fully found in the special findings. Ray v. Baker (1905), 165 Ind. 74, 74 N.E. 619; Blair v. Curry (1898), 150 Ind. 99, 46 N.E. 672.
In finding number thirteen, the court states that the fences are not of such a nature as to constitute a lasting and permanent improvement, but were made necessary by reason of plaintiff's neglect to repair. Assuming the correctness of this finding, plaintiff was not entitled to any relief on the item of fencing.
The proportionate amount of such a permanent improvement as a tile drain, properly chargeable to the life tenant, must, in a great measure, depend on the age of the life tenant. In the special findings, the age of the widow, Elizabeth Kline, is not stated. In the absence of this material fact, this court cannot say that the...
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