Monarch Real Estate Co. v. Frye , 10891.

• Decision Date: 09 December 1921
• Docket Number: No. 10891.,10891.
• Citation: Monarch Real Estate Co. v. Frye , 77 Ind.App. 119, 133 N.E. 156 (Ind. App. 1921)
• Parties: MONARCH REAL ESTATE CO. v. FRYE et al.
• Court: Indiana Appellate Court

77 Ind.App. 119

133 N.E. 156

MONARCH REAL ESTATE CO.

v.FRYE et al.

No. 10891.

Appellate Court of Indiana.

Dec. 9, 1921.

Appeal from Circuit Court, Elkhart County; James S. Drake, Judge.

Action by the Monarch Real Estate Company against Cyrus E. Frye and another. Judgment for defendants, and plaintiff appeals. Affirmed.James H. State, of Elkhart, and Vernon W. Van Fleet, of Washington, D. C., for appellant.

Elias D. Salsbury, of Indianapolis, and Arthur E. Zigler, of Elkhart, for appellees.

NICHOLS, J.

Action by appellant against appellees, to enjoin them from closing and interfering with an alleyway alleged to be appurtenant to appellant's real estate in the city of Elkhart, Ind., and to establish an easement in such alleyway.

There was a special finding of facts, which facts, so far as here involved, are in substance as follows:

Cyrus E. Frye, hereinafter mentioned as appellee, and his immediate and remote predecessors in title, for more than 50 years last past, have been the owners in fee simple of a part of lot No. 54 of the First addition to the town (now city) of Elkhart, Ind., described as follows: Beginning on the east line of Main street, 22 1/2 feet south of the northwest corner of said lot, thence east 80 feet; thence north 22 1/2 feet; thence east 5 feet; thence south 82 1/2 feet; thence west 5 feet; thence north 20 feet; thence west to Main street, thence north to beginning. There has been for more than 40 years last past on said real estate a 3-story brick building facing Main street on the west, and extending 65 feet easterly. Appellant is the owner of the following: A part of said lot 54, beginning at the southwestern corner of said lot, and running thence eastwardly 80 feet; thence northwardly 20 feet; thence westwardly 80 feet to the west line of said lot; thence southwardly 20 feet to the beginning.

The following plat will help to understand the situation:

Image 1 (2.55" X 2.55") Available for Offline Print

Since 1870 there has been a 2-story brick building on the last-described tract extending from said Main street eastwardly about 70 feet. In the rear of said building, and extending eastwardly for about 10 feet, appellant and its grantors have maintained a porch and stairway for 35 years. Appellee's remote predecessor in title, David S. Simonton, from whom title passed January 1, 1902, while seized of the premises now owned by said Frye, for 38 years prior to February 19, 1900, was also owner, and in possession and control of the premises immediately south of and adjoining the real estate of appellant, now known as the Blessing property, improved by a 2-story brick building, with windows and doors opening to the rear of said property and out upon said strip of land in controversy, which said strip of land afforded to both the properties of said Simonton (that now owned by appellee and that now known as the Blessing property) access to Lexingtonavenue to the north. No mention is made in any of the deeds in the chain of title of appellees' land, which is traced back to Simonton's purchase, April 6, 1858, of an easement over said 5-foot strip, but said deeds all convey the same absolutely. Said properties of Simonton, were during the time he owned the same, leased to tenants, and not occupied by him, but he owned and held said 5-foot strip in question for the use of his tenants for ingress and egress to and from Lexington avenue to the rear of said buildings on his said lands. Appellant purchased its said land September 16, 1914, and continued to own it in fee simple, and was in possession thereof thereafter to this date. The first or ground floors of all of said buildings were used for mercantile, office, and business purposes, and the upper floors were used for residence, business, or office purposes, during all of the times from and after 1870, and said 5-foot strip owned by appellee, formerly owned by said Simonton, ran along the east line of all of said properties to Lexington avenue. Said 5-foot strip of land was owned by the said Simonton as a passageway from Lexington avenue to the rear of his said buildings, and was so used during all the time he owned said buildings by his tenants in said buildings as a passageway to reach Lexington avenue, and in conveying goods and fuel to said buildings and ashes and refuse from said buildings to Lexington avenue; and during said times the appellant and its predecessors in title and their tenants, and also the owners of other buildings along said 5-foot strip, used said passageway, from 1870 down to the beginning of this action, and at all times when the same was not obstructed. In the winter time the tenants of the buildings of Simonton and the tenants and owners of the other buildings would pile ashes and débris of all kinds upon said 5-foot strip, so that during the winter season there were times when it was so obstructed that it could not be used for a passageway without traveling over said obstructions.

In the year 1892 and for some years prior thereto, there was a 2-story brick privy on appellee's land which extended partially over said 5-foot strip leaving about 2 feet of said passageway open. From the year 1870, the owners and tenants of the buildings so owned by appellant's predecessors, and the owners and tenants of all the buildings along said 5-foot strip, used said 5-foot strip as a way to and from the buildings in the rear thereof when the same was not obstructed as aforesaid, without any objection on the part of the said Simonton or his tenants in possession of his property during all of said time, in the same manner that the same was used by said Simonton and his tenants in possession of his property. The use of said 5-foot strip as a passageway for appellant and others was a permissive use. During the month of July, 1919, and prior to the commencement of this action, appellee entered upon said 5-foot strip of land so used as a passageway, and dug trenches across said strip, and placed concrete therein, and foundation for brick walls, and in so doing obstructed said passageway so that the appellant and its tenants could not pass and repass through the same; it was the intention and purpose of appellee in doing said acts to erect two brick walls, one of which would be a solid wall, 1 story high, over and across said passageway which would obstruct it so that appellant could not use it for ingress and egress to and from its property to Lexington avenue. Appellee Welter was the agent of appellee Frye, and so acting for him in the doing of said acts.

On these facts, the court stated, as its conclusion of law here involved, that appellant was not entitled to recover as to its claim of an easement for a passageway over said 5-foot strip, and upon this conclusion judgment was rendered in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and now assigns as error that the court erred in its conclusion of law aforesaid, and in its ruling upon the motion for a new trial.

[1] Appellant undertakes to establish the existence of its easement by showing a prescriptive right. In order to do this it must show an actual, open, notorious, continuous, uninterrupted, adverse use for 20 years under claim of right, or it must show such continuous adverse use, and with the knowledge and acquiescence of the owner of the land. Worthley v. Burbanks, 146 Ind. 534, 45 N. E. 779;Fankboner v. Corder, 127 Ind. 164, 26 N. E. 766;Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669, 6 L. R. A. 159;Davis v. Clev., Etc., R. Co., 140 Ind. 468, 39 N. E. 495;Gascho v. Lennert, 176 Ind. 679, 97 N. E. 6;Smith v. Ponsford, 184 Ind. 53, 110 N. E. 194;Kibbey v. Richards, 30 Ind. App. 103, 55 N. E. 541, 96 Am. St. Rep. 333;Lucas v. Rhodes, 48 Ind. App. 219, 94 N. E. 914;Gaskil v. Barnett, 52 Ind. App. 654, 101 N. E. 40.

[2][3] Each of these elements for the purpose of establishing a prescriptive right must be established as a necessary, independent, ultimate fact, the burden of showing which is on the party asserting the prescriptive title, and the failure to find any one of such elements was fatal to appellant's cause of action, for such failure to find is construed as a finding against it. Benedict v. Bushnell, 65 Ind. App. 365, 117 N. E. 267.

It will be observed that there was no finding of fact that the user of the 5-foot strip for an alleyway was uninterrupted; to the contrary, it appears that repeatedly the alleyway was obstructed by appellee and his predecessors in title for a number of years by a permanent brick building thereon.

[4] There was no inconsistency between the ownership of the alleyway by appellee and the permissive use of the same by appellants and others along with appellee, and, where there is no inconsistency between the use and the ownership, there can be no prescriptive right. Parish v....