Reder v. Radtke

• Decision Date: 26 October 1961
• Docket Number: No. 1,No. 19202,19202,1
• Citation: 177 N.E.2d 669,132 Ind. App. 412
• Parties: Edward A. REDER, Martha L. Reder, His Wife, Appellants, v. Herbert J. RADTKE, Jane R. Radtke, His Wife, William R. Thoesen, Blanche M. Thoesen, His Wife, Appellees
• Court: Indiana Appellate Court

Page 669

177 N.E.2d 669

132 Ind.App. 412

Edward A. REDER, Martha L. Reder, His Wife, Appellants, v.Herbert J. RADTKE, Jane R. Radtke, His Wife, William R Thoesen, Blanche M. Thoesen, His Wife, Appellees.

No. 19202.

Appellate Court of Indiana, Division No. 1.

Oct. 26, 1961.

George T. Bush, Chesterton, William G. Conover, Valparaiso, for appellants.

Mox G. Ruge, Chesterton, for appellees.

RYAN, Presiding Justice.

The appellees, plaintiffs below, filed a complaint in the Porter Superior Court, alleging that they were the equitable owners of certain real estate under a contract to purchase and as such were entitled to the use and occupancy of the same, together with an 'easement of way' appurtenant thereto.The appellees further alleged that the present and prior owners of the land in question have under claim of right continuously, openly and adversely used the strip of land as a right-of-way or means of ingress and egress to and from the adjoining land for a period of more than fifty (50) years.The appellees in the cause of action below sought to have the title in the purported easement quieted in them and to abate an obstruction of the easement and to enjoin the appellants from further obstructing the easement.

Appellants filed their answer alleging as a defense that the strip of land in question had been used by others only by expressed limited permission.The appellants also filed a cross-complaint to quiet title to the land in question in the appellants.

The trial was by court, which resulted in a judgment for appellees.Appellants filed a motion for a new trial which was overruled.Appellants have assigned as error the overruling of their motion for a new trial, the specifications of which are that the decision of the court was not sustained by sufficient evidence and was contrary to law.

The evidence in this case tends to reveal that:

In 1874, one John Thomas owned a forty-five (45) acre rectangular tract of land which included the land now owned by appellees and the land now owned by appellants over which the alleged easement runs.

A default judgment was rendered against Thomas and others in favor of the Commissioners of Porter County and on September 29, 1874, a foreclosure decree was entered against Thomas foreclosing a mortgage on this forty-five (45) acre tract of land.

This parcel of land was sold at public auction on February 27, 1875, to the judgment creditor, the Commissioners of Porter County, and a sheriff's certificate was issued to the Commissioners pursuant to which they would become entitled to a Sheriff's Deed one year later which would have been February 27, 1876.However, before the Sheriff's Deed was delivered, John Thomas conveyed the entire parcel of land to one Peter Peterson by means of a warranty deed.This transaction occurred on September 23, 1875.

Then Peterson on December 13, 1875, (which was still before the Sheriff's Deed was issued) conveyed the north half, hereinafter referred to as Tract 'A', of this parcel of land to one Charles Rapp.This conveyance was by means of a warranty deed and there was an express reservation in this deed of a road sixteen feet wide on the west side of this north half, Tract 'A', that was conveyed to Rapp.

The County Commissioners of Porter County, the judgment creditor who had purchased this land at the sheriff's sale, assigned their Sheriff's Certificate of Sale to one Samuel P. Robbins on June 9, 1876, and on this same day the Sheriff's Deed for the whole forty-five (45) acre parcel of land, was delivered to Robbins.

Then on September 4, 1876, Robbins and his wife conveyed, by warranty deed, the north half, Tract 'A', of this forty-five acre parcel of land to Charles Rapp.This deed covered the same north half, Tract 'A', of the land which Rapp had previously purchased from Peterson.However, in this deed from Robbins to Rapp, there was no reservation of any roadway as there was in the deed from Peterson to Rapp.

Then on March 1, 1877, the same Peter Peterson and wife who had conveyed the north half, Tract 'A', of this forty-five acre parcel of land to Charles Rapp expressly reserving a roadway across that north part, conveyed the south half, hereinafter referred to as Tract 'B', of this forty-five acre parcel of land to one William Andershock, who is the predecessor in title of the appellees.This deed from Peterson to Andershock for the south half, Tract 'B', did not contain any grant of an easement or roadway across the north half, Tract 'A', of the land.

Title to the north half, Tract 'A', was by mesne conveyances finally placed in John and Barbara Yacko, husband and wife, who in 1956 conveyed by warranty deed this north half, Tract 'A', to Edwin W. and Florence G. Clark.In this deed from the Yackos to the Clarks, there was an express provision that this north half, Tract 'A', was subject to an easement for highway purposes over the west 16.5 feet of this north half.

Later that same year, 1956, the Clarks conveyed the west 130 feet of this north half, Tract 'A', to the appellants, Edward A. and Martha L. Reder.In this deed from the Clarks to appellants, there was no provision that the land was subject to any easement for highway purposes.

In 1957 the Andershocks, who as stated previously received title to the south half, Tract 'B', of this land from Peterson, then sold this...