McCaslin v. State

• Decision Date: 31 October 1905
• Docket Number: No. 5,440.,5,440.
• Citation: 38 Ind.App. 184,75 N.E. 844
• Parties: McCASLIN et al. v. STATE.
• Court: Indiana Appellate Court

38 Ind.App. 184

75 N.E. 844

McCASLIN et al.

v.STATE.

No. 5,440.^*

Appellate Court of Indiana, Division No. 1.

Oct. 31, 1905.

Appeal from Circuit Court, Boone County; Samuel R. Artman, Judge.

Action by the state against William McCaslin and another. From a judgment for plaintiff, defendants appeal. Affirmed.

P. W. Bartholomew, for appellants. C. W. Miller, Atty. Gen., C. C. Hadley, L. G. Rothschild, and W. C. Geake, for the State.

MYERS, P. J.

Appellee began this action against appellants in the Marion superior court by filing a complaint in three paragraphs. Thereafter the venue was changed to the Boone circuit court, where the case was tried before a jury, verdict returned, and judgment rendered in favor of appellee. The first and second paragraphs of complaint are in the ordinary form; the first demanding possession of, and the second that appellee's title be quieted to, 100 acres of land in Marion county, Ind. The third paragraph is to quiet title, and avers the facts in detail upon which judgment is sought. A great number of pleadings were filed in the case, but we shall only notice those upon which a question is presented for our consideration.

1. It has been held a number of times by the Supreme and this court that only such questions as are discussed by the parties asserting error on appeal will be considered. All other questions will be deemed to have been waived. Hoover v. State, 161 Ind. 350, 68 N. E. 591;Smith v. Borden, 160 Ind. 223, 66 N. E. 681;Clear Creek Coal Co. v. Dearmin, 160 Ind. 162, 66 N. E. 609;Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78;City of Greenfield v. Johnson, 30 Ind. App. 127, 65 N. E. 542.

2. Appellant William McCaslin insists that the court erred in sustaining appellee's demurrer to the second and third paragraphs of his cross-complaint. Omitting the formal parts of this paragraph, William McCaslin avers “that he has been the owner, in open, notorious, unequivocal, continuous, and exclusive possession of the real estate described as follows, to wit: [describes the real estate by metes and bounds] containing 100 acres, for the last thirty-eight years or more, and that the plaintiff in this cause is claiming some interest therein, and this cross-complainant prays that his title in and to said above-described real estate be quieted, and for any and all proper relief herein.” The material allegations of the third paragraph are as follows: That “William McCaslin states that on or about 1860 he entered into the open, notorious, unequivocal, and exclusive possession of the following described real estate, to wit: [describing the lands by metes and bounds] containing 100 acres, and as such owner his title is under a cloud, for the reason that the plaintiff herein claims to own the same as against this defendant, and he prays that his title to the same be quieted, and for all proper relief in the premises.” It is apparent that in both of these paragraphs William McCaslin bases his title and right to the real estate as against appellee upon the doctrine of title by prescription or adverse possession. Section 224, Rev. St. 1852, pt. 28, c. 1, provides that limitation of actions applies to the state as well as other persons. This limitation continued in force until September 19, 1881, and since that time the common-law rule has prevailed, except as to sureties. Section 305, Burns' Ann. St. 1901; State v. Halter, 149 Ind. 292, 47 N. E. 665.

While appellant William McCaslin avers in the second paragraph of his cross-complaint that he had the continuous possession of said real estate for 38 years, it does not appear that he had such possession for 20 years prior to September 19, 1881, and, if the rights of the state were not barred at that time, whatever rights it had then continued unaffected by appellants' possession. This paragraph was filed April 23, 1903, and under its averments we think it insufficient to show a bar, as against the rights of the state, by reason of the 20-year limitation statute. By the averments in paragraph 3, it appears that on or about the year 1860 he took exclusive possession of said real estate, but for what time, or how long he continued in such possession, does not appear. In Worthley v. Burbanks, 146 Ind. 534, 45 N. E. 779, it is said that, in order to constitute adverse possession, five indispensable elements must appear: “(1) It must be hostile, and under a claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must be exclusive; (5) it must be continuous.” In support of this rule the court cites numerous authorities. In Peterson v. McCullough, 50 Ind. 35, the court said: “To acquire a right by prescription, there must be an actual enjoyment. Prescription acquires for the party precisely what he has possessed, and nothing more, and in proving a prescription the user of the right is the only evidence of the extent to which it has been acquired. The use and enjoyment of what is claimed must have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiesence of the owner of the estate, in, over, or out of which the easement prescribed for is claimed, and while such owner was able in law to assert and enforce his rights, and to resist such adverse claim if not well founded.”

Applying the cases from which we have just quoted to the facts as they appear from the allegations of the second and third paragraphs of William McCaslin's cross-complaint, we are of the opinion that neither of these paragraphs are sufficient to withstand a demurrer for want...