Mitchell v. Bain

• Decision Date: 26 November 1895
• Citation: 142 Ind. 604,42 N.E. 230
• Parties: MITCHELL v. BAIN et al.
• Court: Indiana Supreme Court

142 Ind. 604

42 N.E. 230

MITCHELL

v.BAIN et al.

Supreme Court of Indiana.

Nov. 26, 1895.

Appeal from circuit court, Morgan county; George W. Grubb, Judge.

Action by Perlina Bain and others against Edgar V. Mitchell to enjoin defendant from diverting a water course. Plaintiffs had judgment, and defendant appeals. Affirmed.

Chas. G. Renner and Jas. V. Mitchell, for appellant. W. R. Harrison and Jordan & Matthews, for appellees.

MONKS, J.

This was an action brought by appellees to enjoin appellant from erecting and maintaining an embankment on his own land, by means of which the water was collected, and caused to flow and run in large quantities into a private road of appellees, their only means of ingress and egress to their farm of 250 acres, thereby rendering the same unsafe for use, and to recover damages. A demurrer to the complaint for want of facts was overruled, an answer filed, and, at request of appellant, the court made a special finding of facts, and stated its conclusions thereon. Appellant excepted to the conclusions of law, and, over a motion by him for a judgment on the special findings, the court rendered judgment in favor of appellees. The only errors urged are: (1) The court erred in overruling the demurrer to the complaint; (2) the court erred in its conclusions of law.

Appellant insists that the appellees claim title to the private way in controversy by prescription, and that the allegations in the complaint are not sufficient to sustain such title, for which reason the complaint is not good. It is alleged in the complaint “that appellees are the owners of certain real estate, and that the only means of ingress and egress to and from said farm is over the road in controversy, to a public highway, and that the same has been used by appellees and those under whom they claim for 50 years, to the present time, continuously, and that said road has been during all of said times, and still is, an easement and right of way, belonging to and connected with the aforesaid described land of these plaintiffs.” This is a sufficient allegation as to appellees' title to said road in controversy to withstand a demurrer. Under this allegation, title to such easement may be shown by grant or prescription. Steel v. Grigsby, 79 Ind. 184;Sanxay v. Hunger, 42 Ind. 44. The specific allegations, we think, are also sufficient to show title by prescription. Archb. N. P. (Finlay's Ed.) *457; 2 Chit. Pl. 807-810; 3 Chit. Pl. 1118, 1119; 2 Saund. 113a-114c.

It is alleged “that appellees and their grantors have, for fifty years continuously, to the commencement of the action, used said road as a means of ingress to and egress from their real estate, with the knowledge and acquiescence of appellant and his grantors, and that said easement and right has been enjoyed by the appellees and their grantors for the period aforesaid, without obstruction, hindrance, or interruption, under a claim of right so to do.” It is not essential that the word “adverse” be used. The rule is thus stated: “In order that the enjoyment of an easement in another's land may be conclusive of the right, it must be adverse; that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted.” 2 Greenl. Ev. (15th Ed.) § 539, and notes; Sargent v. Ballard, 9 Pick. 257; 2 Saund. 175d, note 2. An allegation that the possession was under a claim of right, with the knowledge and acquiescence of the owner, is equivalent to an allegation that it was adverse. It is clear that the demurrer to the complaint was properly overruled.

It is also insisted by appellant that the special finding only shows that the appellees, and those under whom they claim, “enjoyed a permissive user of said lane or passway for sixty years or more, under a claim of right, but it is not shown that said claim of right was exclusive or adverse to appellant's,” and that this is fatal to appellees' case. There is nothing in the finding to show that the use of said road was permissive. The law is that if there has been the use of an easement for 20 years, unexplained, it will be presumed to be under a claim of right and adverse, and be sufficient to establish the title by prescription, and authorize the presumption of a grant, unless contradicted or explained. Washb. Easem. (4th Ed.) p. 156, § 31. If the use be unexplained, it will be presumed to be adverse. School Dist. v. Lynch, 33 Conn. 334;Hammond v. Zehner, 23 Barb. 473, 21 N. Y. 118; Biddle v. Ash, 2 Ashm. 211. Where one uses an easement whenever he sees proper, without asking permission and without objection, it is adverse; and an uninterrupted adverse enjoyment for 20 years is a title which cannot afterwards be disputed. Such enjoyment, without explanation how it began, is presumed to have been in pursuance of a grant. The owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract, inconsistent with a claim of right by the other party. Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669, and cases cited on page 598, 120 Ind., page 669, 22 N. E.;Dyer v. Eldridge, 136 Ind. 654, 36 N. E. 522; Pierce v. Cloud, 42 Pa. St. 113, 114; Garrett v. Jackson, 20 Pa. St. 335; Hammond v. Zehner, 21 N. Y. 118, 23 Barb. 473; Sargent v. Ballard, 9 Pick. 254, 255;Blanchard v. Moulton, 63 Me. 434;McArthur v. Carrie, 32 Ala. 75;Chalk v. McAlily, 11 Rich. 153;Blake v. Everett, 1 Allen, 250;Barnes v. Haynes, 13 Gray, 188;Stearns v. Janes, 12 Allen, 582; Washb. Easem. (4th Ed.) pp. 156-158, and notes. It follows that, the special findings being silent as to whether the use of said road by appellees and their grantors was permissive, it has the force of a finding for appellees as to that question; that is, that said use was not permissive. In this case, therefore, the uninterrupted use of the road in question by appellees and those under whom they claim for over 50 years, the same being their only means of ingress and egress to and from said farm, and it having been fenced on each side, and worked and kept in repair by appellees and those under whom they claim for over 30 years, without any finding that it was used by permission of appellant and those under whom he claims, or otherwise than under a claim or assertion of right, authorizes the presumption of a grant of the road as a private way to appellees, and as appurtenant to their real estate. This, for the reason that such use for 20 or more years, unexplained, will be presumed to be under an assertion or claim of right, and therefore adverse, and not by lease or favor of the owner.

Appellant earnestly contends that appellees are claiming damages for the obstruction of a natural water course, and that the special findings disclose that the water alleged to have been obstructed by the embankment built by appellant was surface water, for which the law furnished no remedy, “as the same is regarded as a common enemy, which any landowner may ward off by erecting barriers against”; citing Weis v. City of Madison, 75 Ind. 241, 249. That part of the special finding necessary to present this question is as follows: “The private road from appellees' land is sixteen feet wide, and runs from the northeast corner of said land, along the west line of appellant's real estate, one-half mile, where it crosses the I. & V. R. R. track, and intersects with a public highway. From the point where said private road intersects the public highway, said highway runs north one-half mile, upon or near the line dividing the lands of appellant and the heirs of Wilson Williamson, which last-mentioned lands lie northwest of the intersection of said private road with said highway and railroad, and north of the railroad and west of said highway. Immediately west of said highway, as it passes between the lands of appellant and said heirs, the lands of said heirs are low and marshy, but incline to the west. That to the west of the marshy point of said lands of said heirs, and upon their lands, and about six or seven hundred feet west of and parallel with said highway, there is a range of hills, running in a south and southwesterly direction, which hills are more than one hundred feet above the common level, and a part being quite abrupt and steep. That, at the height of twenty-five to thirty-five feet above the level point of the intersection of said private way with said highway, along the foot of said hills, and on said Williamson's land, are four or five springs, from five to seven hundred feet west of said highway, which springs flow constantly in wet and dry weather, and furnish water sufficient in volume to fill a pipe from four to six inches in diameter, and have so flowed from time immemorial. That the hills slope from these springs for a distance of forty feet to the east and southeast to said marshy grounds on said Williamson's land. That prior to the time Williamson owned the land, viz. in 1884, the water from the springs flowed east and south towards the highway, and had no defined channel except near the springs; the waters, when they reached the marshy grounds, spreading out, and reaching and flowing south in the ditch along the highway. In constructing said highway north from the turn of said point of intersection aforesaid, said highway was thrown up, making solid grade, east of said marshy lands of said heirs, forming a ditch on the west side of said grade, running south to a point near the turn in said highway west. The lands of said heirs have been, both the hilly and marshy points, in cultivation for more than ten years; and the owners thereof have endeavored, by plowing and ditching, to prevent the flow of the water in natural channels over their grounds, and have united the flow of water from two of the principal springs in an artificial channel or ditch, which conveys the same to a point near the intersection aforesaid. Williamson has made ditches, in cultivating his land, for the flow...