Long v. Schowe

• Decision Date: 09 January 1914
• Docket Number: 22,525
• Citation: Long v. Schowe, 181 Ind. 13, 103 N.E. 785 (Ind. 1914)
• Parties: Long et al. v. Schowe
• Court: Indiana Supreme Court

103 N.E. 785

181 Ind. 13

Long et al. v. Schowe

No. 22,525

Supreme Court of Indiana

January 9, 1914

From Clark Circuit Court; Harry C. Montgomery, Judge.

Action by James P. Long and others against Henry F. Schowe. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Reversed.

E. C Hughes, for appellants.

H. A Burtt and J. E. Taggart, for appellee.

OPINION

Cox, J.

Appellants brought this action to establish and confirm a right to the use of a certain roadway over and upon the lands of appellee, to compel appellee to remove fences, gates and other obstructions, and to enjoin appellee from further interference with the free use of the roadway. Issue was formed by general denial of appellants' complaint. There was a trial by the court and a finding against appellants. A motion for a new trial was filed by appellants, the basis of which was the alleged insufficiency of the evidence, in law and fact, to sustain the finding of the court. This motion was overruled and this ruling of the court presents the only error assigned in this court and relied on for reversal.

There is no dispute between counsel for the opposing parties over the material facts. They are established by unconflicting evidence. Their differences lie in the application of the law to those facts. One Martin Adams, at the time of his death, in July, 1889, was the owner of 824.14 acres of land in one body in Washington Township, Clark County. He left as his heirs his widow, Jane H. Adams, and his children, James H. Adams, Clarinda J. Fouts, Caroline Graham, William Adams, Thomas H. Adams, Adeline A. Milner, Charles D. Adams and John Q. Adams. Subsequently the widow of Martin Adams died, and John Q. Adams by conveyance from the other heirs, received his share of his father's estate out of property other than the 824.14 acres. This left the ownership of the 824.14 acres of land in seven of Martin Adams' children as tenants in common. The Westport road, a public highway, runs along the southwest line of the land, except that 153 acres lie on the west side of that road, it separating the 153 acres from the remainder of the tract. An 80 acre tract owned by Charles D. Adams at and prior to the death of Martin Adams, and the farm of John M. Bower lie along the east boundary line of the 824.14 acres; and on the east line of that 80 acre tract and the John M. Bower farm there is a public highway, designated as the Charlestown and Madison, or New Washington road. On the north side of the 80 acres, owned by Charles D. Adams as aforesaid, and between that and the John M. Bower farm there is a roadway extending from the east line of the 824.14 acre tract eastwardly to the so-called Charlestown and Madison road, and which roadway the said Charles D. Adams used as an outlet from his 90 acre tract, on which he lived, to that public highway.

September 16, 1895, an action, entitled Clarinda J. Fouts et al. v. William Adams et al., was filed in the Clark Circuit Court, in which it was sought to partition the 824.14 acres of land among the aforesaid heirs of Martin Adams, deceased, other than John Q. Adams, who had previously received his share of the estate as heretofore stated. To this action Charles D. Adams was made a party. But before the cause was tried the heirs, other than Charles D. Adams, executed a deed to him for 90 acres (a 50 and a 40 acre tract) off of the east side of the 824.14 acres, in partial partition of the same, and in full of his interest in said real estate, which 90 acres so conveyed joined his 80 acre tract on its west line. As a consideration for the last named conveyance, Charles D. Adams and wife conveyed to the other heirs, excepting John Q. Adams, all of his interest in the residue of said real estate, and also agreed to "keep open a roadway as now established" leading from the Martin Adams homestead, which was near the Westport road, across the 90 acre tract conveyed to him, or rather across the 40 acre part of the 90 acres, and over the roadway used by him on the north line of his 80 acres to the Charlestown and Madison road. The road across the 40 acres connecting with the road on the north line of the 80 acres. This deed did not specifically reserve any right of way over the residue of the tract to the Westport road. Afterwards, at the November term, 1895, by interlocutory order of the court in the partition cause, commissioners were appointed to divide the 824.14 acres among the other heirs entitled thereto, except the 90 acres voluntarily partitioned to Charles D. Adams as aforesaid. In the interlocutory order for the division of the land and the appointment of commissioners to make partition the court made the statement that the latter, by reason of the conveyances just above mentioned, "has no further interest in the residue of said real estate." Afterwards the commissioners filed their report, which was approved and confirmed by the court. In the division so made by the commissioners William Adams received lot No. 1; James H. Adams, lot No. 2; Clarinda J. Fouts, lot No. 3; Adeline A. Milner, lot No. 4; Caroline Graham, lot No. 5; and Thomas H. Adams, lot No. 6. The commissioners also reserved and set apart a roadway across these lands in the words following: "We have also reserved in the above partition a roadway, beginning at the Westport and Vienna road and the southwest corner of lot No. 6, thence east to the line of Charles D. Adams' 40 acre tract; thence south 60 poles to Charles D. Adams' road to New Washington. Said road shall be twenty feet wide and for the use of the owners of the above partitioned lands, including Charles D. Adams. It shall be kept open and free from all encumbrances, such as gates, etc., unless all the interested owners shall consent to such. The land for said road shall be taken from and along the southern boundaries of lots No. 4, 5 and 6, and from the eastern boundaries of lots No. 2 and 3, so far as it shall extend along said boundaries." The order and judgment of the court approving the report of the commissioners was as follows: "It is therefore considered, ordered and adjudged by the court that the said report be and the same is in all things approved and confirmed; and it is further ordered and adjudged by the court that the said partition be and the same is made firm and effectual among said parties, and the said parties shall hold, occupy and own in fee simple the tracts and parcels of land in severalty as set off to them respectively."

Afterwards appellee purchased lots Nos. 4 and 5, owned by Mrs. Milner and Mrs. Graham. There was no way of ingress to or egress from these lots except by the road laid out by the commissioners, as they were inside lots. So appellee and others used the roadway as laid out by the commissioners as aforesaid until about 1908 or 1909, and until appellee also purchased lots Nos. 2, 3 and 6; that is to say, all the interests except William Adams' and Charles D. Adams'. Then, owning all the land between his first purchase and the Westport road, on both sides of a part of the road laid out by the commissioners in the partition proceedings, appellee closed the road. Up to the time the road was closed by appellee it was used by Charles D. Adams, his grantees, including appellants, and by the public. Sometime after the 90 acres were conveyed to Charles D. Adams by the other heirs as aforesaid, that part of the 90 acres on which the roadway connecting with the road laid out by the commissioners is located, and also the 80 acre tract owned by Charles D. Adams, passed by various conveyances from Adams and his grantees into the possession and ownership of the appellants. Each of the conveyances through which the title came to appellants provided that the grantees should have the right to and the use of the roadway laid out by the commissioners. The roadway in dispute extends from the Westport road along the south line of lots Nos. 6, 5 and 4, and on the east line of lots Nos. 3 and 2 of the partition, to the Charles D. Adams road across the 40 acres, thence across that tract to the roadway along the north line of the 80 acre tract formerly owned by Adams and now owned by appellants, and thence to the Charlestown and Madison road.

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