Marengo Cave Co. v. Ross

• Decision Date: 05 November 1937
• Docket Number: 26942.
• Citation: 10 N.E.2d 917,212 Ind. 624
• Parties: MARENGO CAVE CO. v. ROSS.
• Court: Indiana Supreme Court

10 N.E.2d 917

212 Ind. 624

MARENGO CAVE CO. v. ROSS.

No. 26942.

Supreme Court of Indiana

November 5, 1937

John H. Luckett, of English, and Walter Bulleit, of New Albany for appellant.

Connor D. Ross, of Indianapolis, and H. W. Mock, of English, for appellee.

ROLL Judge.

Appellee and appellant were the owners of adjoining land in Crawford county, Ind. On appellant's land was located the opening to a subterranean cavity known as 'Marengo Cave.' This cave extended under a considerable portion of appellant's land, and the southeastern portion thereof extended under lands owned by appellee. This action arose out of a dispute as to the ownership of that part of the cave that extended under appellee's land. Appellant was claiming title to all the cave and davities, including that portion underlying appellee's land. Appellee instituted this action to quiet his title as by a general denial and filed a cross-complaint by a general denial and filed a crosscomplaint wherein he sought to quiet its title to all the cave, including that portion underlying appellee's land. There was a trial by jury which returned a verdict for the appellee. Appellant filed its motion for a new trial which was overruled by the court, and this the only error assigned on appeal.

Appellant assigns as grounds for a new trial that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law. These are the only grounds urged for a reversal of this cause.

The facts as shown by the record are substantially as follows: In 1883 one Stewart owned the real estate now owned by appellant, and in September of that year some young people who were upon that land discovered what afterwards proved to be the entrance to the cavern since known as Marengo Cave this entrance being approximately 700 feet from the boundary line between the lands now owned by appellant and appellee and the only entrance to said cave. Within a week after discovery of the cave, it was explored, and the fact of its existence received wide publicity through newspaper articles, and otherwise. Shortly thereafter the then owner of the real estate upon which the entrance was located took complete possession of the entire cave as now occupied by appellant and used for exhibition purposes, and began to charge an admission fee to those who desired to enter and view the cave, and to exclude therefrom those who were unwilling to pay for admission. This practice continued from 1883, except in some few instances when persons were permitted by the persons claiming to own said cave to enter same without payment of the usual required fee, and during the following years the successive owners of the land upon which the entrance to the cave was located, advertised the existence of said cave through newspapers, magazines, posters, and otherwise, in order to attract visitors thereto; also made improvements within the cave, including the building of concrete walks, and concrete steps where there was a difference in elevation of said cavern, widened and heightened portions of passageways; had available and furnished guides, all in order to make the cave more easily accessibly to visitors desiring to view the same; and continuously, during all this time, without asking or obtaining consent from any one, but claiming a right so to do, held and possessed said subterranean passages constituting said cave, excluding therefrom the 'whole world,' except such persons as entered after paying admission for the privilege of so doing, or by permission.

Appellee has lived in the vicinity of said cave since 1903, and purchased the real estate which he now owns in 1908. He first visited the cave in 1895, paying an admission fee for the privilege, and has visited said cave several times since. He has never, at any time, occupied or been in possession of any of the subterranean passages or cavities of which the cave consists, and the possession and use of the cave by those who have done so has never interfered with his use and enjoyment of the lands owned by him. For a period of approximately 25 years prior to the time appellee purchased his land, and for a period of 21 years afterwards, exclusive possession of the cave has been held by appellant, its immediate and remote grantors.

The cave, as such, has never been listed for taxation separately from the real estate wherein it is located, and the owners of the respective tracts of land have paid the taxes assessed against said tracts.

A part of said cave at the time of its discovery and exploration extended beneath real estate now owned by appellee, but this fact was not ascertained until the year 1932, when the boundary line between the respective tracts through the cave was established by means of a survey made by a civil engineer pursuant to an order of court entered in this cause. Previous to this survey neither of the parties to this appeal, nor any of their predecessors in title, knew that any part of the cave was in fact beneath the surface of a portion of the land now owned by appellee. Possession of the cave was taken and held by appellant's remote and immediate grantors, improvements made, and control exercised, with the belief on the part of such grantors that the entire cave as it was explored and held was under the surface of lands owned by them. There is no evidence of and dispute as to ownership of the cave, or any portion thereof, prior to the time when in 1929 appellee requested a survey, which was approximately 46 years after discovery of the cave and the exercise of complete dominion thereover by appellant and its predecessors in title. ^[1]

It is appellant's contention that it has a fee-simple title to all of the cave; that it owns that part underlying appellee's land by adverse possession. Section 2-602, Burns' Ann.St.1933, section 61, Baldwin's Ind.St.1934, provides as follows: 'The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterward: * * * Sixth. Upon contracts in writing other than those for the payment of money, on judgments of courts of record, and for the recovery of the possession of real estate, within twenty (20) years.'

It will be noted that appellee nor his predecessors in title had never effected a severance of the cave from the surface estate. Therefore the title of the appellee extends from the surface to the center but actual possession is confined to the surface. Appellee and his immediate and remote grantors have been in possession of the land and estate here in question at all times, unless it can be said that the possession of the cave by appellant as shown by the evidence above set out has met all the requirements of the law relating to the acquisition of land by adverse possession. A record title may be defeated by adverse possession. All the authorities agree that, before the owner of the legal title can be deprived of his land by another's possession, through the operation of the statute of limitation, the possession must have been actual, visible, notorious, exclusive, under claim of ownership and hostile to the owner of the legal title and to the world at large (except only the government), and continuous for the full period prescribed by the statute. The rule is not always stated in exactly the same words in the many cases dealing with the subject of adverse possession, yet the rule is so thoroughly settled that there is no doubt as to what elements are essential to establish a title by adverse possession. Craven v. Craven (1913) 181 Ind. 553, 103 N.E. 333, 105 N.E. 41; Rennert v. Shirk (1904) 163 Ind. 542, 72 N.E. 546; Vandalia R. Co. v. Wheeler (1914) 181 Ind. 424, 103 N.E. 1069; Tolley v. Thomas (1910) 46 Ind.App. 559, 93 N.E. 181; McBeth v. Wetnight (1914) 57 Ind.App. 47, 106 N.E. 407. Let us examine the various elements that are essential to establish title by adverse possession and apply them to the facts that are established by the undisputed facts in this case.

(1) The possession must be actual. It must be conceded that appellant in the operation of the 'Marengo Cave' used not only the cavern under its own land but also that part of the cavern that underlaid appellee's land, and assumed dominion over all of it. Yet it must also be conceded that during all of the time appellee was in constructive possession, as the only constructive possession known to the law is that which inheres in the legal title and with which the owner of that title is always endowed. Morrison v. Kelly (1859) 22 Ill. 609, 610, 74 Am.Dec. 169; Cook v. Clinton (1887) 64 Mich. 309, 31 N.W. 317, 8 Am.St.Rep. 816; Ables v. Webb (1905) 186 Mo. 233, 85 S.W. 383, 105 Am.St.Rep. 610; 1 R.C.L. 692; 2 C.J. 51 et seq. and authorities there cited. Whether the possession was actual under the peculiar facts in this case we need not decide.

(2) The possession must be visible. The owner of land who, having notice of the fact that it is occupied by another who is claiming dominion over it, nevertheless stands by during the entire statutory period and makes no effort to eject the claimant or otherwise protect his title, ought not to be permitted, for reasons of public policy, thereafter to maintain an action for the recovery of his land. But, the authorities assert, in order that the possession of the occupying claimant may constitute notice in law, it must be visible and open to the common observer so that the owner or his agent on visiting the premises might readily see that the owner's rights are being invaded. Holcroft v. Hunter (1832) 3 Blackf. 147; Towle v. Quante (1910) 246 Ill. 568, 92 N.E. 967; Tinker v. Bessel (1912) 213 Mass. 74, 99 N.E. 946; Jasperson v. Scharnikow (1907) 150 F. 571, 80 C.C.A. 373, 15 L.R.A. (N.S.) 1178 and note. What constitutes...