Quick v. Taylor
| Decision Date | 06 March 1888 |
| Docket Number | 13,058 |
| Citation | 16 N.E. 588,113 Ind. 540 |
| Parties | Quick, Administrator, v. Taylor |
| Court | Indiana Supreme Court |
From the Bartholomew Circuit Court.
Judgment affirmed, with costs.
M Hacker, W. T. Strickland and J. B. Reeves, for appellant.
J. W Morgan, for appellee.
This was a suit by the administrator of Tunis Quick, deceased, against Marshall Taylor, to recover a balance alleged to be due on a promissory note payable by the latter to the plaintiff's intestate.
The defendant presented, by way of counter-claim, that the note sued on had been given as part of the purchase price of a tract of land which had been conveyed to him by the decedent in the year 1874. It was alleged that the deed of conveyance contained full covenants of warranty, and that the whole purchase price, except one hundred and sixty-six dollars, the balance remaining due on the note in suit, had been paid. It is alleged that, prior to the year 1874, the Columbus and Shelbyville Railroad Company had located its right of way over the land so conveyed to the defendant, which right of way, it is averred, had been acquired by the company by means of certain condemnation proceedings duly had, in the Bartholomew Common Pleas Court, under the general railroad law in force since 1853. It is averred that the railroad company, by virtue of the above mentioned proceedings, acquired the title in fee simple to its right of way, which was alleged to be of the width of one hundred feet, and to embrace an acre and a fraction of land. In consequence of the location and condemnation above mentioned, the claim is made that the grantor had no title to the land covered by the right of way at the time the conveyance was made, and that the defendant had thereby sustained damage to the amount of two hundred and sixty-six dollars.
The appellant contends that the court erred in overruling the demurrer to the counter-claim, because, it is said, the answer proceeds upon the erroneous assumption that the railroad company acquired a fee simple title to the land condemned, instead of a mere easement or right of way over the real estate conveyed.
In a case somewhat analogous, where a defendant set up as a counter-claim, to a suit on a purchase-money note, that there had been an entire failure of title to a part of the land by reason of a prior conveyance to a railroad company, it was held that proof of the conveyance of a mere easement in or right of way over the land, did not support the counter-claim pleaded. Douglass v. Thomas, 103 Ind. 187, 2 N.E. 562.
This was upon the theory that an easement or right of way was nothing more than an encumbrance on the land, and a breach of the covenant against encumbrances, and hence did not sustain a counter-claim which alleged a breach of the covenant of seizin.
It is well settled, that the covenant for seizin is not broken by the existence of easements or encumbrances which do not strike at or effect the technical seizin of the purchaser. Rawle Covenants (5th ed.), section 59; Vaughn v. Stuzaker, 16 Ind. 338; Shelbyville, etc., T. P. Co. v. Green, 99 Ind. 205 (215).
While it is true, that, under the act authorizing the State to appropriate lands for the construction of the Wabash and Erie Canal, it has been held that the State and its grantees, successively, acquired the fee simple in lands thus appropriated, this ruling has been followed reluctantly, and has not been applied except to lands acquired under the internal improvement act of 1836. Water Works Co. v. Burkhart, 41 Ind. 364; Nelson v. Fleming, 56 Ind. 310; Cromie v. Board, etc., 71 Ind. 208; City of Logansport v. Shirk, 88 Ind. 563; Shirk v. Board, etc., 106 Ind. 573, 5 N.E. 705; Blair v. Kiger, 111 Ind. 193, 12 N.E. 293.
So far as we are advised, the rule which controlled the decision of the cases above referred to has not been applied to the taking of land by private, or merely quasi public corporations, in the absence of an express statute authorizing the appropriation of the fee simple. Indianapolis, etc., R. W. Co. v. Rayl, 69 Ind. 424; Prather v. Western Union Tel. Co., 89 Ind. 501.
The doctrine generally accepted is, that the right acquired by the power of eminent domain extends only to an easement in the land taken, unless the statute plainly provides for the acquisition of a larger interest. Brookville, etc Co. v. Butler, 91 Ind. 134 (46...
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