Lynch v. Keck

• Decision Date: 21 October 1970
• Docket Number: No. 568A87,No. 1,568A87,1
• Citation: 147 Ind.App. 570,23 Ind.Dec. 206,263 N.E.2d 176
• Parties: Clayton R. LYNCH, Agnes L. Lynch, Appellants, v. William H. KECK, Appellee
• Court: Indiana Appellate Court

Page 176

263 N.E.2d 176

147 Ind.App. 570

Clayton R. LYNCH, Agnes L. Lynch, Appellants, v. William H. KECK, Appellee.

No. 568A87.

Appellate Court of Indiana, Division No. 1.

Oct. 21, 1970.

William Espenschied, Mt. Vernon, Merrill, Schroeder & Johnson, D. Bailey Merrill, Evansville, for appellants.

Clements, McClellan & Hawley, K. Richard Hawley, Mt. Vernon, Emison & Emison, Rabb Emison, Vincennes, for appellee.

PER CURIAM.

This is an appeal from the Posey Circuit Court wherein the plaintiff-appellee filed his complaint against defendants-appellants in three pleading paragraphs, in which relief was prayed for the following:

(1) recovery of balance owed by appellants on a contract;

(2) recovery of value of dirt removed from appellee's land;

(3) lateral support to an embankment adjoining appellee's land.

Appellants filed an answer denying all material allegations of the complaint in accordance with Rule 1--3 of the Rules of the Supreme Court of Indiana.

The cause, thus being at issue, was tried to the court.

The court entered judgment for the appellee, awarded damages in the amount of $470.12 for the value of the dirt removed from appellee's land, and ordered the appellants and their successors in title to maintain and keep in good repair a certain easement adjoining appellee's land.

Appellants filed a motion for new trial alleging as error, in substance, the following:

1. Error in several particulars in the assessment of the amount of recovery;

2. The decision of the court is not sustained by sufficient evidence in several particulars;

3. The decision of the court is contrary to law in several particulars;

4. Various errors of law occurring at the trial.

The facts of this case are that appellee owns real estate in the City of Mount Vernon, Indiana. Appellants own real estate adjoining that of the appellee. Appellants planned to build an apartment house on their land and wanted to use a strip of land on appellee's property as an entrance to their apartment parking lot.

A dispute arose between the parties as to whether this strip of land was a public or a private alleyway. On May 2, 1969, this matter was brought before the City Council of Mount Vernon. The appellants requested that the city open this alley as a public alleyway; appellee contended that this strip of land was owned by him and that the city should not open it. A resolution, which would have made the land in question a public alleyway, was defeated by a vote of the council members.

Thereafter, on May 17, 1966, appellee filed a quiet title action against the appellants and the City of Mount Vernon seeking to quiet title to this strip of land. On July 19, 1966, the appellee and appellants reached an agreement whereby appellee agreed to dismiss his quiet title action and agreed to recognize the easement for appellants' use. In consideration therefor, appellants agreed to pay appellee $100.00 in settlement of all differences between the parties and to hire the D. K. Parker Construction Company to grade the land to certain specifications as agreed to, surface the easement with rock suitable for automobile traffic, and to sod the embankment on appellee's side of the easement. This agreement was reduced to writing and executed by the parties.

The D. K. Parker Construction Company began work on July 22, 1966, to grade the easement in accordance with the agreement between the parties. Thereafter, the Street Commissioner of the City of Mount Vernon received complaints that the easement embankment was eroding and that mud was accumulating in the street. On August 5, 1966, the Street Commissioner had the grade level of the easement lowered by a bulldozer to prevent further erosion. The appellants requested the bulldozer operator to place the dirt, which was being removed in order to lower the alleyway, upon their adjoining land. When appellee arrived, he called the city attorney and had the work stopped.

Appellee contacted Mr. Parker of the Parker Construction Company and told him to complete the job as required in the contract. Mr. Parker expressed doubt that appellants would pay for the additional cost to raise the grade level back to the height stated in the contract. Appellee responded by assuring Mr. Parker that if appellants refused to pay, appellee would reimburse him for the work. When Mr. Parker sent appellants a bill for the work done under the contract, appellants paid a portion, but refused to pay for the regrading work required because of the city's lowering of the grade. Appellee paid the amount owed and took an assignment thereof from Mr. Parker. Appellee then brought this cause of action against the appellants.

On appeal to this court, the appellants contend that the decision of the trial court on pleading paragraph I of appellee's complaint is not sustained by sufficient evidence and is contrary to law. First, appellants allege there was a fatal variance between the allegations of paragraph I and the evidence offered in support thereof by the appellee. Appellants insist that paragraph I states a cause of action for a debt owed, while the evidence offered showed a breach of contract. Secondly, appellants allege that the evidence presented on paragraph I was insufficient to support the allegations thereof, thus the decision for appellee was contrary to law.

We cannot agree with either of these contentions. First, an examination of the complaint reveals that the first pleading paragraph alleged facts stating a cause of action for money due by reason of the breach of a written contract. The transcript contains ample evidence establishing the formation of the contract, the breach thereof and the resulting damages. Thus, we fail to see where there is a variance between the pleading and the proof offered to substantiate it.

Concerning appellants' second contention that the judgment on paragraph I was contrary to law because there was insufficient evidence to support the court's decision, the law is well settled that on appeal, this court may consider only the evidence most favorable to the appellee together with all reasonable inferences to be drawn therefrom, and it is only where the evidence is without conflict, and can lead to but one conclusion, and the jury or trial court has reached an opposite conclusion, that the verdict of the jury or the decision of the trial court will be set aside on the grounds that it is contrary to law. Hinds, Executor etc., v. McNair, et al. (1955) 235 Ind. 34, 41, 129 N.E.2d 553, (Rehearing Denied); Pokraka v. Lummus Co. (1952) 230 Ind. 523, 532, 104 N.E.2d 669, (Rehearing Denied); Schabler v. Indianapolis Morris Plan Corp. (1968) 142 Ind.App. 319, 234 N.E.2d 655, 657, (Rehearing Denied).

After having reviewed the evidence, we cannot say it was without conflict. In considering the evidence most favorable to the appellee, we find there was ample evidence to support the trial court's decision, and that decision, therefore, is not contrary to law.

Appellants next allege that the amount of damages recovered under paragraph II of appellee's complaint is not sustained by sufficient evidence and that the award of any damages was contrary to law. Appellee's claim for damages was based upon the value of the dirt removed from appellee's property and placed on appellants' property. Appellants claim that no evidence was offered as to the exact amount of dirt taken from appellee's property and thus the court's award of damages was not based upon sufficient evidence.

In the case of Kostas v. Zaracostas et al. (1947), 118 Ind.App. 425, 432, 75 N.E.2d 423, 425, (Transfer Denied), this court stated:

'The law is well settled that this court will not disturb the decision of the trial court as to the amount of recovery where the evidence is conflicting, and there is evidence to support the judgment. Trammel v. Briant (1900), 25 Ind.App. 375, 58 N.E. 206; Chmielewski's Estate v. Chmielewski (1936), 102 Ind.App. 20, 200 N.E. 747; Chicago Furniture Co. v. Cronk (1905), 35 Ind.App. 591, 74 N.E. 627.' Sikora v. Barney et al. (1965) 138 Ind.App. 686, 207 N.E.2d 846, (Transfer Denied); Pelkey, Admrx. etc. v. Strom (1963) 135 Ind.App. 163, 187 N.E.2d 753, (Transfer Denied); Miller, et al. v. Long (1956) 126 Ind.App. 482, 131 N.E.2d 348, 132 N.E.2d 272, (Transfer Denied).

The record now before us reveals testimony by Mr. Parker that he estimated 35 cubic yards of topsoil and 65 cubic yards of common fill dirt were removed by the city and that the value of common fill dirt was 20 cents per cubic yard. Also, appellee testified that topsoil had a value of $1.75 to $2.25 per cubic yard. Thus there is evidence in the record to support the trial court's award of damages for the dirt removed from appellee's land.

The appellants also allege that the dirt removed by the city and placed on appellants' property was taken from a public easement across appellee's land. Appellants admit, however, that the dirt in a public alley belongs to the owner of the underlying fee; however, appellants argue that appellee relinquished his right and title to this dirt by not demanding that it be put back on his land, and having therefore abandoned it, he cannot demand that appellants pay for its value.

This contention of appellants is unsupported by the evidence. First, the evidence shows that at the May 2, 1966, meeting of the City Council of Mount Vernon the city did not adopt a resolution to open the easement as a public alley. Secondly, there is no evidence to indicate that appellee relinquished his right to the dirt placed on appellants' land. To the contrary, there was testimony by the Street Commissioner that appellee demanded that the dirt be put back on his property.

The appellants next contend that the court's decision requiring appellants to repair and maintain the embankment is contrary to law and not sustained by the evidence. Appellants first allege that the trial court was without jurisdiction to issue a decree of...