Lucas v. Rhodes

• Decision Date: 27 April 1911
• Docket Number: No. 6,934.,6,934.
• Citation: 94 N.E. 914,48 Ind.App. 211
• Parties: LUCAS v. RHODES.
• Court: Indiana Appellate Court

48 Ind.App. 211

94 N.E. 914

LUCAS

v.RHODES.

No. 6,934.¹

Appellate Court of Indiana, Division No. 1.

April 27, 1911.

Appeal from Circuit Court, Fountain County; F. E. Schoonover, Judge.

Action by Mary A. Rhodes against John H. Lucas.Judgment for plaintiff, and defendant appeals.Affirmed.O. B. Ratcliff, for appellant.Livengood & Bryant, for appellee.

HOTTEL, J.

This action was brought by appellee against appellant to quiet title in her to a right of way through appellant's land.The complaint is in one paragraph.The cause was put at issue by general denial, there was a trial by jury, a general verdict for appellee, and answers to interrogatories filed therewith, and a judgment on the verdict in favor of appellee, from which appellant took this appeal.

The errors assigned and relied on by appellant for reversal call in question the ruling of the court on the motion for a new trial, and the motion for judgment in appellant's favor upon the answers to interrogatories.

The facts in this case, about which there is no dispute, are, in substance, as follows: For 50 years or more appellee's father, John Rhodes, Sr., deceased, and Perry Timmons, owned adjoining tracts of land in Fountain county, Ind., located between two roads, running parallel north and south, and about 1 1/4 miles apart, the road on the east being known as the “Terre Haute road” and the road on the west the “River road.”The Rhodes tract was the closer to the Terre Haute road, and, in fact, contained and embraced a strip of ground of one acre, used for road purposes, which extended out to said Terre Haute road, thereby giving to said Rhodes a direct outlet and passageway over his own land to said Terre Haute road.It appears, also, from the evidence that the way as used by said Rhodes to get from his premises to said Terre Haute road was a continuation of the way in question.The said Timmons tract adjoined the said Rhodes tract on the west and south, and extended west to said river road.On the southeast 40 of said Timmons tract, being the 40 which appellant now owns, over which the easement in question passes, there was a residence near said easement, which the tenants and rentors of said Timmons occupied and used.Perry Timmons continued the owner of said 40-acre tract, now owned by appellant, until 1892, when he sold the same to his son, John, and said John held and owned the same until in August, 1896, when he sold to appellant.Said Timmons and son and appellant, and their tenants and employés, each and all during their said ownership and occupancy of said 40-acre tract always used said right of way now claimed by appellee, the same being the only way they had to get to the river road, until when appellant bought another tract of land, and built on it and abandoned and tore down said residence.Said John Rhodes, deceased, during his life also owned a river bottom farm which was southwest of and separated from his upland farm, above referred to, and lay on either side of said river road.In March, 1904, John Rhodes, Sr., died intestate, and in April, 1904, his children and heirs agreed upon a partition and division of his real estate, and made quitclaim deeds to each other for their respective shares therein.In this division the appellee got the northeast 50 acres with the old home on it, and the acre strip leading out to the Terre Haute road, and her brother John got a 105.33-acre tract, lying between and entirely separating the land of appellee and appellant, and being one of the tracts over which said right of way passes.In the making of their quitclaim deeds to each other for their said respective shares of said real estate, said John Rhodes, in his deed, provided for a right of way over appellee's tract to the Terre Haute road, and appellee's deed recognized this right of way, and was made subject to the same, and appellee, in her deed, provided for the right of the use of a spring on the tract conveyed to her brother John, and the said deed of John was also made subject to such use, but no provision for or mention of the right of way in question was made in either of said deeds.The right of way in question had been used by appellee and her predecessor in title, John Rhodes, deceased, prior to the bringing of her suit herein, for a period of about 60 years, for purposes of travel in any and all kinds of vehicles used by them in going to and from their residence on said upland farm to said river road, and especially by the deceased, Rhodes, in going to and from his said residence and upland farm to his said river bottom farm.We append a plat of the several tracts of land over which the way passes, showing the location of the road with reference to the same.

Image 1 (5.24" X 6") Available for Offline Print

In his argument, appellant first discusses the sufficiency of the evidence to sustain the verdict, and insists that appellee in her complaint proceeds upon the theory that she has a prescriptive right to the way in question appurtenant to the land, and that she must recover on this theory, or not at all.Appellee, on the other hand, insists that the general allegations of the complaint “are comprehensive enough to include the right of way derived by any of the well-recognized means-by grant, prescription, or necessity” - and cites as supporting her position the cases of Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230;Steel v. Grisby, 79 Ind. 184, at page 186, and others.These cases lend support to appellee's position, and this theory seems to have been adopted by the court below and the parties in the trial of the cause, judging by the evidence, the answers to the interrogatories, and the judgment rendered in the case as disclosed by the record, but under our view of the evidence in this case, as hereinafter expressed, it is not important whether the complaint be given the comprehensive scope claimed as its theory by appellee, or restricted and limited as insisted upon by appellant.Our ultimate conclusion is the same in either event.

The first ground of the motion for a new trial is predicated upon the insufficiency of the evidence to sustain the verdict.As reasons for urging this ground of the motion, counsel insist: (1) That the evidence shows that appellee and her predecessors in title have at all times had over their own land a good way out to said Terre Haute road, that the right of way in question has at no time been essential to the use and enjoyment of appellee's tract of land, and that, therefore, no easement appurtenant to said real estate could be created by prescription, but that whatever easement, if any, was created by such use, was in gross, and died with the person so using the way for the required length of time.(2) That the evidence shows that the right of way in question was one which has always up to the time of the removal of the residence on appellant's 40-acre tract been essential and necessary to the use and enjoyment of appellant's said tract, and that in such a case the use of the way in question by appellee and her predecessors in title “did not necessarily import adverse user under a claim of right, but, under such circumstances, such use may be inferred to be with the consent and permission of the owner of the servient estate.”(3) That the undisputed evidence shows that the use of the way in question “began about 60 years ago, in the intimate relations of two adjoining landowners over and across their adjoining farms *** for mutual accommodation, and that such use was inconsistent with the adverse use under a claim of right necessary under the law to create title by prescription.”(4) That the undisputed evidence shows that in the beginning of the use of the way in question there was an agreement between John Rhodes, deceased, and appellant's remote grantor, Perry Timmons, “whereby said Rhodes was to keep up a part of the gates and road for the privilege of going through along said way in question,” and that the use of said way began and continued “in not only a spirit of mutual accommodation, but also a spirit of mutual remuneration,” and that such use under said agreement was permissible only, and never intended by either of the parties to said agreement to be “perpetual” and as an “unqualified right.”

[1][2] The law applicable to and controlling upon the first ground, supra, urged by appellant against the sufficiency of the evidence, as laid down by the Supreme Court, is as follows: “A way is an incorporeal hereditament, and consists in the right of passing over another's ground.It may arise from grant, prescription, or necessity, and is either in gross-that is, attached to the person using it-or appurtenant, or annexed to and passing with a conveyance of the estate, but it is never presumed to be in gross when it can be fairly construed to be appurtenant to the land.”(Our italics.)Sanxay v. Hunger, 42 Ind. 44, 48; Washb. on Easements, 161, § 5;2 Bl. Com. 35, notes by Cooley.“Private ways are either appendant or in gross.Ways appendant are incident to an estate.They are in the land, concern the premises, and pertain to its enjoyment and pass with the land.Ways in gross attach to and vest the right in the person to whom granted.Alley v. Carleton, 29 Tex. 74, 94 Am. Dec. 260;Davidson v. Nicholson, 59 Ind. 411;Moore v. Crose, 43 Ind. 30;Sanxay v. Hunger, supra;Fankboner v. Corder, 127 Ind. 164, 26 N. E. 766;Harding v. Cowgar, 127 Ind. 245, 26 N. E. 799.Ways in gross cannot be assigned or granted to another.”Hoosier Stone Co. et al. v. Malott, 130 Ind. at page 21, 29 N. E. at page 412.

[3] What appellant says with reference to the evidence disclosing that appellee and her predecessor in title had a way over their own land to the Terre Haute road is true.This fact might preclude the existence of the way in question by necessity, but we do not understand that such fact necessarily prevents the way in question from being appurtenant to appellee's land.There is evidence...