Mayer v. C. P. Lesh Paper Company

• Decision Date: 16 November 1909
• Docket Number: 6,844
• Citation: 89 N.E. 894,45 Ind.App. 250
• Parties: MAYER v. C. P. LESH PAPER COMPANY
• Court: Indiana Appellate Court

89 N.E. 894

45 Ind.App. 250

MAYER v. C. P. LESH PAPER COMPANY

No. 6,844

Court of Appeals of Indiana

November 16, 1909

Rehearing denied January 28, 1910, Reported at: 45 Ind.App 250 at 255.

From Superior Court of Marion County (71,836); Vinson Carter Judge.

Suit by Leopold Mayer against the C. P. Lesh Paper Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

W. P. Herod, for appellant.

Clifford & Moffett and William L. Taylor, for appellee.

OPINION

ROBY, P. J.

Suit for an injunction to restrain appellee from tearing down a fence and cutting off the corners of two buildings, and for damages. An answer of general denial was filed to the two paragraphs of complaint. A special finding of facts was made and conclusions of law stated thereon in the defendant's favor. A motion for a new trial was overruled, and this appeal is taken from a judgment following the conclusions. The evidence is not in the record, and the correctness of the conclusions of law upon the facts found is the only question for decision. The appellant was the plaintiff. Had no evidence been introduced he would have failed. The burden of proof was therefore upon him, and in order that he may have conclusions in his favor, the special verdict must contain findings upon which they can rest.

The special findings cover approximately nine typewritten pages of the record. The controversy relates to the location of the boundary between lots four and five in block seventy-three in the city of Indianapolis, which covers the triangle formed by Kentucky avenue, Capitol avenue and Georgia street. The court finds, among other things, that there are now no monuments existing for fixing the corners of the original survey of said square. The finding does not show any special survey of said square. It does show that in July, 1906, the appellee, after purchasing lot four therein, procured surveys of said lot by two different persons; that the survey made by one of said persons found a surplus on Kentucky avenue of two and seventy-five one-hundredths feet and a surplus on Georgia street of one and fifty-four one-hundredths feet; that the other surveyor found a surplus on Kentucky avenue of one and sixteen one-hundredths feet and on Georgia street of ninety-five one-hundredths of a foot, and a surplus on Capitol avenue of two inches. It is also found that two competent civil engineers, appointed by the court to make a survey of the lot in controversy, found a surplus on Georgia street of one foot, three and three-quarter inches, and on Kentucky avenue of one foot and nine and one-quarter inches; that lot five was improved by having houses thereon, fronting on both Kentucky avenue and Georgia street; that said buildings were erected on said lots prior to 1863, and that prior to 1860 a fence was erected between the houses that had theretofore been erected on lots four and five, fronting on Georgia street. The finding does not show by whom said fence was erected, but that it extended north a distance of seventy-four feet, nine inches; that it had been from time to time repaired by the owner of that part of lot five, west of said fence; that said fence had, either in whole or in part, been rebuilt since its first erection; that in each instance of rebuilding it was rebuilt as near as practicable upon the same line on which the original fence was located; that it is only partly remaining, a portion of each end being gone; that as it now stands and as originally erected its south end was a distance of seven inches and its north end a distance of thirteen and one-half inches east "of the line dividing said lots."

The wisdom of the law as conclusively settled in this State is exemplified by the facts disclosed in this controversy. Here is a tract of land of small dimensions, the monuments for fixing the corners of which no longer exist. Three separate unofficial surveys produce different results. Boundaries fixed by adverse and continued possession for twenty years are at least capable of definite ascertainment. The doctrine is stated in the case of Sailor v. Hertzogg (1845), 2 Pa. 182, and quoted with approval in 3 Washburn, Real Prop. (5th ed.), *499, as follows: "The statute protects the occupant, not for his merit, for he has none, but for the demerit of his antagonist in delaying the contest beyond the period assigned for it." And see Webb v. Rhodes (1902), 28 Ind.App. 393, 61 N.E. 735.

Appell...