Philbin v. Carr

• Decision Date: 23 November 1920
• Docket Number: 9,825
• Citation: 129 N.E. 19,75 Ind.App. 560
• Parties: PHILBIN ET AL. v. CARR ET AL
• Court: Indiana Appellate Court

129 N.E. 19

75 Ind.App. 560

PHILBIN ET AL. v. CARR ET AL

No. 9,825

Court of Appeals of Indiana

November 23, 1920

Rehearing denied February 15, 1921, Reported at: 75 Ind.App 560 at 593.

Transfer denied May 18, 1921.

From Laporte Superior Court; Samuel E. Cook, Special Judge.

Action by Drusilla Carr against Jessie M. Philbin, Hattie E. Tyler, Daisy Holladay and others, in which the defendants named filed a cross-complaint. From a judgment for plaintiff, the defendants named appeal.

Reversed.

Crumpacker & Crumpacker, Hoag & Ullman, John L. Davidson and Osborn, McVey & Osborn, for appellants.

Henry Warrum and Everett G. Ballard, for appellees.

Dausman J. McMahan, J., not participating.

OPINION

Dausman, J.--

This action was instituted by appellee Drusilla Carr in the Lake Superior Court, by filing her complaint to quiet title to the following described real estate in Lake county, viz.:

Lots 1 and 2, in section 31, in township 37 north, in range 7 west of the second principal meridian, and all that part of said section 31 lying north of said lots 1 [75 Ind.App. 564] and 2, above described, and all that part of said section lying north of the Indian boundary line.

Hiram Carr and a large number of other persons were made defendants. As to Mary H. B. Hitt, William W. Hall, Isaac R. Hitt, Arza B. Hitt, and Isaac R. Hitt Jr., the action was dismissed. Jessie M. Philbin, Hattie E. Tyler (now Hattie E. Hodge) and Daisy Holladay (now Daisy Holladay Brown), being the children of Lavina H. Holladay, deceased, and Jesse Holladay, deceased, filed an amended answer denying each and every material allegation of so much of the amended complaint as relates to said lot 2, and disclaimed any interest in the other real estate described in the amended complaint. All other defendants were defaulted.

Said Philbin, Tyler (now Hodge), and Holladay (now Brown), also filed a pleading which they denominated "cross-complaint," and by which they sought to quiet their title to said lot 2. Drusilla Carr and a large number of other persons were made defendants in the cross-complaint. Drusilla Carr filed an answer in denial to the cross-complaint, and all other defendants therein named were defaulted.

The cause has been twice tried. The first trial was in the Porter Superior Court, and the second in the Laporte Superior Court. Each trial resulted in a verdict and judgment for the appellee. From the latter judgment Jessie M. Philbin, Hattie E. Tyler (Hodge) and Daisy Holladay (Brown) have appealed. The defaulted parties have been made nominal appellees, but nothing has been presented as to them. The only controversy involved is wholly between the appellants and Drusilla Carr (hereinafter designated the appellee) and relates to the ownership of lot 2 only.

The following errors have been assigned: (1) That the Laporte Superior Court was without jurisdiction; (2) overruling appellants' motion for a continuance on account of the illness of one of their counsel; (3) overruling appellants' motion for a venire de novo; (4) overruling appellants' motion for a new trial.

The evidence is unusually voluminous, covering more than 660 pages of the transcript and 600 pages of appellants' printed brief. The appellee claimed to be the owner by adverse possession of all of section 31, and her case was tried on the predominant theory that she had color of title which extended her actual occupancy to the boundaries thereof. Consequently most of the evidence concerning her occupancy relates to acts done elsewhere than on lot 2. The following plat of said section and statement of evidential facts gleaned from the uncontroverted evidence, will be sufficient for a full and fair understanding of the case:

[SEE EXHIBIT IN ORIGINAL]

Drusilla Carr is the widow of Robert Carr, deceased. She married Robert Carr on Christmas, 1875. At the time of the marriage Robert Carr lived in the vicinity of the land involved in this action, in a dugout, constructed of driftwood, completely heaped over with sand except the north end thereof, and located in a hollow about twenty rods from Lake Michigan and just across the Grand Calumet river from a place known as "The Blowout." He had lived there for a number of years with his father, William Carr; the father having died there about 1867. His father was a fisherman, hunter and trapper.

That region was then a wilderness, consisting mainly of sand dunes and swamps. There were some ponds, drainage in the form of a broad and shallow river, and here and there clumps of scrub trees. Mink, muskrats, and skunks were plentiful. There were some coon, wolves, and fox. Wild rice and ducks were plentiful in season.

During the two years next preceding his marriage, Robert Carr had with him a boy named Conklin. Robert Carr and this boy, with their seine and nets, took fish in large quantities from Lake Michigan and the river, which they sold at Chicago. They killed ducks in large numbers, and for these they found a ready market. They trapped mink, skunks, and muskrats for the fur. They picked berries, sand cherries, and wild grapes for their own use. They dug sassafras roots and sold some cedar posts and Christmas trees. They had a fish house and an ice house on the beach. They intended to live there "until they could get something better."

After his marriage Robert Carr and his wife continued to live in the same vicinity and in much the same way as he had lived before. There were numerous shacks along the beach, erected by fishermen and hunters who occupied them but a short time each year. The Carrs helped themselves to these shacks when they were vacant. They would slip into these vacant shacks and remain until driven out by the owners. One of Mrs. Carr's friends, testifying in her behalf, said that the Carrs lived in so many different shacks that "it would take a Philadelphia lawyer to keep track of them." At one time they experimented with a garden, but the experiment failed because the hot and shifting sand was unfit for gardening. They would sometimes get firewood by taking limbs and trees that were down, stumps, and occasionally green pine. It was a common practice for them and other people to get loads of kindling wood, cordwood, and lumber from the shore where it had drifted at times of storm. They set their nets in Lake Michigan at a distance from the shore depending upon conditions. Sometimes they would put them out as far as a quarter of a mile from the shore. They had a fish house, an ice house, and a stable for their horse at the beach. For a number of years but little fishing has been done in the lake for the reason that the fish quit coming to that place. In recent years the Carrs maintained a bowery or dancing place which was patronized by picnic parties and at which refreshments were served. At one time they lived in a log cabin in the bend of the river, known as the "Crockett cabin." They lived in that cabin until it got so bad they were compelled to abandon it. Then they built "a room" out on the beach. The Crockett cabin was tumbling when they left it. The west side of it was heaped over with sand. The cabin blew down--went to pieces.

Other fishermen were located along the beach in front of section 31. They had the same kind of buildings as the Carrs had. "They all had the same kind of nets and seines and conducted their business the same as Robert Carr did, in a general way." Mrs. Caroline Carr, Peterson. Sabinskie, John Carr, Nelson, Stearns, Zeek Conklin, Lightner, Pat Malone, Johnson, Blank, Jackson, and others had shacks, cottages, and other buildings along the beach in front of section 31. These buildings were bought and sold with great frequency. Some of them were moved away; some blown away; some torn down and hauled away. It was a great duck country and in the duck season the marshes were full of duck-hunters. Sportsmen maintained clubhouses in that region, and hunters came from great distances to shoot duck there, including the land constituting said section. A great many people trapped on the land--everybody who wanted to trap. A kind of rough grass grew in the moist places, and cattle were fond of this grass. The villagers and all others who cared to do so, pastured their cows there. The appellee never kept a cow.

Robert Carr was a cripple and walked with a crutch. Much of the time he worked as a cartridge packer--an employment peculiarly suitable to him, because he could do the work while seated. The manager of the Aetna Powder Mill testified that he took charge of the plant April 17, 1882; that Robert Carr was working there then and was living with his family at Miller; that he continued to work in the mill for thirteen years and his family continued to reside at Miller; that during the first eight or ten years of that period he worked continuously, but after that he worked off and on.

Mrs. Carr testified, in substance, as follows:

"After my marriage I first began housekeeping at the place called 'The Blowout,' East of the Calumet River and North of the village named Miller. While we were living there in March, 1876, a man came who said his name was Bingham. He said that in the East he had traded for some land in Section 31 and he wanted Mr. Carr to help him locate it. My husband went with him in a boat across the river to the lake. They returned in the evening and Bingham stayed over night. He was a tall, frail, sickly-looking man. He said he was discouraged with his land; that he had been buncoed that it was not worth the cost of recording the deed; that he would not get the deed recorded for it; that his best land was lot 1 and that lay in the river. I said 'If you don't want it, give it to me.' He answered: 'Mrs. Carr, if you will move on the land, you may have it.' The next day...