Ritchey v. Welsh

• Citation: 48 N.E. 1031, 149 Ind. 214
• Case Date: January 04, 1898
• Court: Supreme Court of Indiana

149 Ind. 214
48 N.E. 1031

RITCHEY et al.
v.
WELSH.

Supreme Court of Indiana.

Jan. 4, 1898.

Appeal from circuit court, Jasper county; U. Z. Wiley, Special Judge.

Action by Mary E. Welsh against Osiander K. Ritchey and others to enforce a way of necessity. From a judgment for plaintiff, defendants appeal. Affirmed.

Seller & Uhl and R. W. Marshall, for appellants. Frank Foltz, Chas. G. Spitlert, and Harry R. Kurrie, for appellee.

MONKS, J.

This action was brought by appellee against the appellants to enforce a way of necessity. The demurrer to the complaint was overruled. The court made a special finding of facts, and stated its conclusions thereon in favor of appellee, to each of which appellants excepted. Final judgment was rendered in favor of appellee. The errors assigned, and not waived, call in question each conclusion of law and the action of the court in overruling the demurrer to the complaint. It appears from the special finding that Mary C. Ritchey died intestate, the owner of a body of land bounded on the west and south by a highway; that afterwards, in 1887, partition was made of said real estate, so that the real estate allotted to each was bounded on the west or south by said highway. The 18 acres set off to appellant Osiander K. Ritchey was 36 rods wide north and south, and divided the

[48 N.E. 1032]

53 acres set off to Samuel W. Ritchey, husband of said deceased, from the 29 acres set off to appellee. Afterwards said Samuel W. Ritchey died the owner of said 53 acres, and in 1891, in an action for partition, the same was divided in such a manner that the part set off to appellant Osiander K. Ritchey was between the public highway and the part set off to appellee, so that the tract set off to appellee could not be reached from a public highway over said 53 acres, except by crossing over the part thereof set off to said Osiander K. Ritchey. No mention was made in said partition proceedings of a way from appellee's tract to any highway. Samuel W. Ritchey occupied said 53 acres from the time the same was set off to him until his death, and entered from the highway through a gate on the part of said land afterwards set off to said appellant Osiander K. Ritchey, going over the land in the most convenient route. After the partition of the 53 acres, a gate was still maintained upon said land at the highway for the convenience of appellee, she going thence north to a point west of the southwest corner of her said tract; thence east to her land. The part of the 53 acres set off to appellee was not fenced until 1893, when she erected a gate at the southwest corner thereof, and has since used said gate, and a route extending directly west therefrom to the east line of the southwest quarter, and thence south to the gate at the highway, the entire way so used being upon the part of said 53 acres set off to appellant Osiander K. Ritchey, and with his consent. Appellant Osiander K. Ritchey, before the commencement of this action, offered to appellee the privilege of passing over the 18 acres which were set off to him in the partition of his mother's land, in 1887, from north to south. By the way so offered, appellee could go from the 25 acres set off to her in the partition of her father's land, in 1891, to the 29 acres set off to her in the partition of her mother's land, in 1887, which last-named tract was bounded on the west by a highway. Appellants insist that the court erred in overruling the demurrer to the complaint, and in each of the conclusions of law, because-“First, a right of way of necessity does not arise out of partition proceedings; second, appellee had another way offered before this action was commenced; third, appellants had selected another way.”

It is settled law that if one conveys a part of his land in such form as to deprive himself of access to the remainder, unless he goes across the land sold, he has a way of necessity over the portion conveyed. This is because the law presumes an understanding of the parties that the one selling a portion of his land shall have a legal right of access over the part sold to the remainder, if he cannot reach it in any other way. If the part conveyed is in such form that the grantee cannot reach the same except over the part not conveyed, such grantee has a way of necessity thereto over the land of the grantor, not conveyed, for the reason that the...