Null v. Williamson
| Decision Date | 29 May 1906 |
| Docket Number | 20,626 |
| Parties | Null v. Williamson |
| Court | Indiana Supreme Court |
From Allen Circuit Court; E. O'Rourke, Judge.
Suit by Jessie C. Williamson against Lycurgus S. Null. From a decree for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
W & E. Leonard, for appellant.
James B. Harper and John W. Eggeman, for appellee.
Appellee filed a complaint in two paragraphs against appellant. The first was to establish, and to enjoin the obstruction of, a private way, extending along the north end of certain lots in the town of New Haven, from a public street to a barn which was situate about two hundred fifteen feet from said street. The other paragraph seems to have been founded on the theory that the strip of land in controversy is a public alley, and that, as it had been obstructed, and as the obstruction caused a special injury to appellee, she was entitled to maintain a suit to enjoin appellant from obstructing the alleged way.
As every easement lies in grant, actual or presumed, appellee might have greatly simplified the first paragraph of her amended complaint by alleging her ownership of the way claimed, leaving to the evidence to disclose whether she had an easement by prescription. Hall v Hedrick 1890), 125 Ind. 326, 25 N.E. 350; Mitchell v. Bain (1895), 142 Ind. 604, 606 42 N.E. 230. The elements which constitute a prescriptive easement are well understood. Davis v. Cleveland, etc., R. Co. (1894), 140 Ind. 468, 39 N.E. 495, and cases there cited. Owing to the existence of a recital in said paragraph, some facts can only be said to appear, if at all, as matters of necessary inference from facts well pleaded. As to the extent that some essential matters may be said thus to appear, the views of the members of this court are quite divergent. However, as doubt does not exist as to the requirements of a prescription in such an action, and as the case must be reversed, as there is a failure of proof, we shall put our reversal on that ground. As to the second paragraph of the amended complaint, we may say, in passing, that its validity is a moot question. The evidence, as it developed on the trial, had no tendency to show the existence of a public alley, out of which a subsidiary right in appellee could grow, and, therefore, the existence of said paragraph may be disregarded. We proceed to the question as to whether the court erred in overruling appellant's motion for a new trial.
As conducive to a more ready understanding of the matter, we exhibit the following plat of the locus in quo.
[SEE DRAWING IN ORIGINAL]
Appellee is the owner of lots twenty-one, twenty-two, twenty-three and twenty-four, exhibited on said plat, and her effort upon the trial was to establish a private driveway, ten feet wide immediately north of said lots, on the berm or heel path of what was the Wabash & Erie canal, from Broadway to a barn which stands twelve feet south of the north line of said lot twenty-four. Appellee deraigns her title to said lots from the canal company. About 1858 a grist-mill was erected on lot twenty-one, about forty feet south of said berm, and this mill was operated by various persons until 1881 or 1882, when it was destroyed by fire. There was also, during a few of the earlier years of said time, a shingle-mill on lot twenty-one, situate north of the grist-mill. From 1860 to 1881 there was a hog-pen in the northeast corner of lot twenty-three. Hogs were kept in said pen by the grist-mill people from 1860 until 1866, and it was the practice to feed them from the north end thereof. The barn above mentioned was erected in 1863, and, until the burning of the grist-mill, it was used as a stable for the horses that were used in connection with said business. Lots twenty-one and twenty-two were not enclosed by a fence until long after the destruction of said mill. The other lots had a fence along the north line thereof. The canal was abandoned as a waterway in 1881. As will be observed from the plat, there was a space left between the waterway and the lots to the south thereof through said addition. This space was occupied by the berm of the canal, the purpose of it being, as we judicially know, to afford a level space which would keep dirt that might be further back from falling into the water. The north end of lots twenty-three and twenty-four was low, and, as there was a good path on the berm from Broadway, it became the habit of the men who operated the mill to use the berm in going to and from the barn. They and their customers also made frequent use of the east end of the way in passing to the north of said mill. The regular dock was on the east side of Broadway, but until the canal was abandoned boats occasionally tied up, and loaded and unloaded freight, opposite lots twenty-one and twenty-two, since there were no dock charges made for landing at that point. Some of this freight was consigned to the proprietors of said mill, and, as it was customary to store freight on the berm, near to the canal, the way along said lots twenty-one and twenty-two was used by the people who were shipping or receiving freight. To the west of lot twenty-two the berm grew narrower, and, presumably because it was not wide enough to pile freight on and yet leave a driveway, it was the practice for boats to land as near to the bridge over Broadway as possible. To the west of the barn the berm could not be traveled except at times of low water, and there was no evidence of any substantial use of it for the purpose of travel beyond that point. On three occasions said mill owners placed a number of loads of gravel on the alleged way next to the barn, in order to make the way easier to travel at that point. Appellee's former husband, Volney Powers, acquired an interest in lots twenty-one and twenty-two in 1857, and he also acquired an interest in lots twenty-three and twenty-four in 1864, and from the latter date forward, with the exception of a short time prior to April 6, 1882, the title to said property has been either in said Powers or in appellee. During the time the mill was in operation, however, there were outstanding interests in said property held by persons who were engaged in the business of operating the mill. April 6, 1882, appellee became the sole owner of said lots, and during the most of the time down to the latter part of April, 1902, at which time appellant obstructed the alleged way, the barn has been occupied by tenants. We may say, however, in passing, that the evidence of the extent of the user since 1897 (after a brick sidewalk was built along the west side of Broadway) is very vague, and is scarcely sufficient to warrant an affirmative finding that it was continuous. There has never been an assertion of a right to use the strip in question, and the tenants used it, without any direction from the owner, simply because it was the only convenient way to the barn. Appellant has a record title from the canal company. So far as the statement of facts is concerned, it but remains to call attention to the evidence bearing on the question as to whether the user was under claim of right and exclusive. Appellee's counsel asked of her witness Allen H. Dougal, who had been a part owner of said lots and a partner in the business from 1866 to 1875, the following question concerning said way: "You may state how it was used; whether by the acquiescence of the canal company, or by agreement, or how." The witness answered: "Why, we used it because we had to use it, and we were never denied the use of it." This witness subsequently testified that he never claimed any exclusive right in said way; that he thought it belonged to the public. Another witness for appellee, Charles E. Stapleford, who had also been a part owner of said lots, and engaged in the business, testified that he made no claim whatever to the berm of the canal. Appellee, who was a witness on her own behalf, was asked the following question on her direct examination: "You may tell the court whether or not you always claimed the right to enter the mill and the shingle-mill, while it was there, and the stable, from the heel path." She answered: We take the following further questions and answers from her examination, for the purpose of showing her understanding of the facts: ...
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