Pittsburg, C., C. & St. L. Ry. Co. v. O'Brien

• Decision Date: 09 October 1895
• Citation: 41 N.E. 528,142 Ind. 218
• Court: Indiana Supreme Court
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. O'BRIEN et al.

142 Ind. 218

41 N.E. 528

PITTSBURG, C., C. & ST. L. RY. CO.

v.O'BRIEN et al.

Supreme Court of Indiana.

Oct. 9, 1895.

Appeal from circuit court, Tipton county; L. J. Kirkpatrick, Judge.

Action by James O'Brien and another against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, to recover land and to quiet title. Judgment for plaintiffs, and defendant appeals. Reversed.

Burchenal & Rupe, for appellant. O'Brien & Wolf, for appellees.

McCABE, J.

The appellees sued the appellant in the Howard circuit court, in a complaint of two paragraphs, the first of which was to quiet the title of the plaintiffs to, and the second was to recover possession of, lots 19 and 50 in T. J. Faulkner's addition to the city of Kokomo, in Howard county, Ind. The venue was changed to the Tipton circuit court, where a trial of the issues formed upon the complaint resulted in a special verdict, upon which the plaintiffs below had judgment quieting their title and recovering the possession. The errors assigned call in question the action of the circuit court in overruling a demurrer to each paragraph of the complaint, in overruling appellant's motion for a venire de novo, in overruling appellant's motion for judgment in its favor on the special verdict, and in rendering judgment in favor of appellees upon the special verdict.

The second paragraph of the complaint is fatally defective, in its failure to state that the plaintiff was entitled to possession of the lots. The statute provides that “the plaintiff in his complaint shall state that he is entitled to possession of the premises, particularly describing them, the interest he claims therein and that the defendant unlawfully keeps him out of possession.” Burns' Rev. St. 1894, § 1066 (Rev. St. 1881, § 1054); Leary v. Langsdale, 35 Ind. 74;McCarnan v. Cochran, 57 Ind. 166;Vance v. Schroyer, 77 Ind. 501;Levi v. Engle, 91 Ind. 330;Mansur v. Streight, 103 Ind. 358, 3 N. E. 112;Simmons v. Lindley, 108 Ind. 297, 9 N. E. 360;Miller v. Shriner, 87 Ind. 141. Strong as these authorities are in support of the error assigned on the ruling overruling the demurrer to the second paragraph of the complaint for want of sufficient facts, the appellant has waived it by the failure to discuss the same in its brief.

The substance of the special verdict is: That the railroad track the defendant now owns and operates through Howard county, Ind., was located where it now is in 1851 and 1852, under a charter originally granted to the New Castle & Richmond Company, and an extension of the charter of said company made in 1851; and the name of the company was changed, before the railroad was completed, to the Cincinnati, Logansport & Chicago Railroad Company, by which last-named company the most of the work of construction thereof had been done through Howard county. Prior to the establishment of said railroad through Howard county, Thomas J. Faulkner was the owner of the N. W. 1/4 of section 31, township 24 N., range 4 E.; and said railroad route, now owned by said defendant, was located upon said quarter section, then owned by Thomas J. Faulkner. Afterwards, said Faulkner caused a part of said land to be surveyed and platted as an addition to the town (now city) of Kokomo, Ind., and acknowledged the same on May 5, 1866, and recorded it on said day in the record of such plats kept in the recorder's office of Howard county, Ind.; said plat containing lots numbered from 1 to 50, both inclusive, of different sizes and shapes, as shown on the said plat. Said addition was located on both sides of said railroad route, and said lots were located up to within 17 1/2 feet of the center of said railroad track, on either side thereof. Said lots 19 and 50 were located on the east side of said railroad track, and adjoining said track, as described in said plat, and west of Sherman avenue, and north of George street, as indicated on said plat. On November 18, 1869, Thomas J. Faulkner and wife deeded to Napoleon B. Brown said lots 19 and 50, with a number of others in said addition, for $700. In ascertaining the amount of ground in the lots so deeded, they were measured and paid for by the acre, and said lots 19 and 50 with others, to within 17 1/2 feet of the center of said railroad track. Prior to the time of the conveyance of said lots 19 and 50, they were fenced to a line near 17 1/2 feet on the east side of the center of said track, and occupied by said Faulkner as a garden or truck farm, and so continued to be used for two years or more after said Brown became the owner thereof. Afterwards, the fence became worthless, and the lots lay out as commons until some four to six years ago, when the defendant company, or some of its predecessors in ownership, put a fence on the east side of its track, 40 feet, or nearly so, from the center of its track, where it yet remains. Afterwards, on April 21, 1890, said Brown and wife made a warranty deed for lots 19 and 50 to the plaintiffs, James and Charlotte Louisa O'Brien, subject to any unpaid taxes or outstanding tax titles. On February 11, 1880, the auditor and treasurer of Howard county sold said lots 19 and 50 to Gustav R. Frees, who transferred his claim to Lewis Mergenthein, who took a tax deed therefor on February 16, 1882; and Mergenthein deeded said lots to the plaintiffs on April 21, 1890, they having been sold by said officers as the property of said Brown. On March 22, 1887, William A. Stewart received a tax deed for lot 19 from the treasurer of the city of Kokomo; and on May 21, 1890, said Stewart deeded said lot to the plaintiffs. The defendant in this action is entitled to all the rights of all its predecessors in ownership of said railroad route. The plaintiffs have title to lots 19 and 50, as laid out and located by said Faulkner in his plat aforesaid. The predecessor in ownership of the defendant, who obtained the right to locate defendant's road over the land of said Faulkner, embracing said lots 19 and 50, obtained 35 feet in width through said land, and no more, at the place where said lots are situate; and neither the defendant, nor any of its predecessors, ever had or used more than 17 1/2 feet from the center of their track, and on the east side thereof, adjoining lots 19 and 50, until four to six years ago. That the plaintiffs have been damaged by the detention of the part of said lots in the sum of three dollars.

The facts thus found do not justify a judgment recovering the possession by the appellees, because it is nowhere found that they were entitled to possession. That, as we have seen, was a fact indispensably necessary to be alleged in the complaint, to make it good, and it was equally necessary that the fact should be found. But the fact is neither alleged nor found. Had it been found, the verdict would still have been ill, because that finding would have been outside of the issues, and ineffective. Burns' Rev. St. 1894, supra; Leary v. Langsdale, supra; McCarnan v. Cochran, supra; Vance v. Schroyer, supra; Levi v. Engle, supra; Mansur v. Streight, supra; Simmons v. Lindley, supra; Miller v. Shriner, supra; Swaynie v. Vess, 91 Ind. 584. In an action for possession of real estate, the burden is upon the plaintiff to establish by affirmative proof his title and right to possession. Roots v. Beck, 109 Ind. 472, 9 N. E. 698. That being so, the failure to find that the appellees were entitled to possession is equivalent to a finding that they were not entitled to possession. Henderson v. Dickey, 76 Ind. 264; Graham v. State, 66 Ind. 366; Johnson v. Putnam, 95 Ind. 57;Parmater v. State, 102 Ind. 90, 3 N. E. 382;Glantz v. City of South Bend, 106 Ind. 305, 6 N. E. 632;Railway Co. v. Hart, 119 Ind. 273, 21 N. E. 753;Town of Fowler v. Linquist, 138 Ind. 566, 37 N. E. 138;Manor v. Board of Com'rs, 137 Ind. 367, 34 N. E. 959, and 36 N. E. 1101, and cases there cited; Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741. The finding, then, is, in legal effect, that the appellees are not entitled to possession. That finding precludes and prevents a judgment quieting title in them, because, as was said in Ragsdale v. Mitchell, 97 Ind., at pages 461, 462: “An action to quiet title does not merely settle title so far as to invest the plaintiff with possession. It does much more than this, when successfully prosecuted It sweeps away all claims and liens which impair the complainant's title.” If the appellees...