Lennertz v. Yohn
| Decision Date | 19 May 1948 |
| Docket Number | 17748. |
| Parties | LENNERTZ et al. v. YOHN et ux. |
| Court | Indiana Appellate Court |
Appeal from Lake Circuit Court; Joseph E. Brown, Special Judge.
Suit by Pete Lennertz and Bertha Lennertz, husband and wife, and others, against Guy U. Yohn and Helen Marie Yohn, husband and wife, to quiet title to real property, wherein defendants cross-complained to assert their right of continued use and enjoyment of a driveway. From the judgment, plaintiffs appeal.
Reversed with instructions.
George E. Hershman and Oliver W. Hershman, both of Crown Point, for appellants.
Davis & Gruenberg and William J. Regan, both of Gary, for appellees.
This is an action by the appellants to quiet title to certain real estate owned by them in Lake County, Indiana. Appellees Yohn and Yohn filed a cross-complaint and answers in which they asserted a right to the continued use and enjoyment of a driveway herein described under and by virtue of a certain written instrument excuted on April 8, 1941, by the then owners of the real estate now owned by the appellants and appellees.
The court rendered its special findings of fact and stated its conclusions of law thereon in favor of appellees, to which conclusions appellants excepted. Judgment was rendered upon the conclusions of law and upon the overruling of their motion for a new trial appellants perfected this appeal.
The errors relied upon for reversal are: That the court erred in each of its conclusions of law numbered 1, 2, and 3 and that the court erred in overruling appellants' motion for a new trial.
The facts as found by the court are, in substance, as follows:
1. The court finds that on April 8, 1941, one Blanche H. Carlson was the owner of the following described real estate in Lake County, Indiana, to-wit: 'The East 55 feet of Lot No. 11 (of 1 acre lots) containing 0.33 of an acre and the West 22 feet of Lot No. 12 (of 1 acre lots) containing 0.13 of an acre, all in Section 16, Township 35 North, Range 8 West of the 2nd P.M.'
2. The court further finds that on the 8th day of April, 1941, the following written instrument was made by and between one Blanche Carlson and Lawrence and Dorothy Rumbaugh, to-wit:
Which said writing was recorded on April 21, 1941, which instrument was at the time of purchase by Lennertz and Lennertz delivered to the plaintiffs by Blanche Carlson.
3. The court further finds that on said date the West line of the property heretofore found to be owned by Blanche H. Carlson was the East line of the property then owned by said Lawrence and Dorothy Rumbaugh. That the North line of each of said properties abutted upon the right of way line of State Highway No. 330, and that starting at the South right of way line of said State Highway No. 330 on the dividing line of said two properties, there was a hedge fence extending from said Highway running South to opposite the Northeast corner of the house on the Rumbaugh property. That the only driveway upon or near the property lines of said real estate was wholly upon the Carlson property and was used by the persons owning or occupying both the Carlson and Rumbaugh properties. That at the time of the execution of the written instrument set forth in Finding No. 2 there was no fence or structure on the dividing line of said properties from the Southeast corner of the Rumbaugh residence to the South line; that there was no monument of the dividing line of said property South of the hereinabove mentioned hedge fence.
4. The court further finds that on May 2, 1941, Lawrence R. Rumbaugh and Dorothy M. Rumbaugh, husband and wife, executed and delivered a warranty deed to Guy U. Yohn and Helen Marie Yohn, husband and wife, for the following described real estate in Lake County, Indiana, to-wit: 'Part of lot No 11 of 1 acre lots in Section 16, township 35 North, Range 8 West of the 2nd P.M., commencing at a point 55 feet West of the Northeast corner thereof, and running thence South 150 feet; thence West 50 feet; thence North 150 feet; thence East to the place of beginning, in the Town of Merrillville, * * *' which said deed was duly recorded on May 9, 1941; that said deed contained no other restrictions, reservations or additional rights.
That thereafter said Guy U. Yohn and Helen Marie Yohn executed a Warranty Deed to Lawrence R. Rumbaugh and Dorothy M. Rumbaugh for the purpose of securing the unpail portion of purchase price for said real estate.
5. The court further finds that sometime after the receipt of the deed hereinbefore mentioned in Finding No. 4, the said Guy U Yohn and Helen Marie Yohn moved upon said property and took possession thereof and have since and are now occupying said property.
6. The court further finds that on April 12, 1944, Blanche H. Carlson and her husband, Walter C. Carlson, executed and delivered a Warranty Deed to Pete Lennertz and Bertha Lennertz, his wife, for the following described real estate in Lake County, State of Indiana, to-wit: (same as described in finding No. 1), which said deed was duly recorded on May 31, 1944, and that the plaintiffs, Pete Lennertz and Bertha Lennertz, his wife, are now the owners of said described real estate; that said deed contained no restrictions, reservations, or conditions.
7. The court further finds that in the fall of 1943, Guy U. Yohn built a fence on the property line between said properties starting at a point directly east of the Southeast corner of the residence or house on the Yohn real estate and running thence South to the South line of said lot; said fence was built by placing 4 x 4 posts into the ground at a distance of approximately eight feet apart, and nailing on said posts cross pieces upon which was placed the woven wire and that the woven wire was wrapped around the north post and a strip of lath or other board was nailed over said woven wire and fastened to said north post. That the north post of said fence was about two and one-half or three feet East of the Southeast corner of the residence of said Yohn property; that said fence remained on and along said line continuously from the time of its erection until during the middle of November 1944; that said fence was so erected on said property at the time of the execution of the Warranty Deed described in Finding No. 6. That prior to the building of the above fence by Guy U....
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Lennertz v. Yohn, 17748.
...118 Ind.App. 44379 N.E.2d 414LENNERTZ et al.v.YOHN et ux.No. 17748.Appellate Court of Indiana, in Banc.May 19, Appeal from Lake Circuit Court; Joseph E. Brown, Special Judge. Suit by Pete Lennertz and Bertha Lennertz, husband and wife, and others, against Guy U. Yohn and Helen Marie Yohn, h......