Ritz v. Indiana and Ohio R.R., Inc.

• Decision Date: 14 April 1994
• Docket Number: No. 24A01-9307-CV-218,24A01-9307-CV-218
• Citation: 632 N.E.2d 769
• Parties: Ronald W. RITZ, Appellant-Defendant, v. INDIANA AND OHIO RAILROAD, INC., PSI Energy, and Cincinnati Bell Telephone Company, Appellees-(Third Party Defendants), v. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, Indiana, Plaintiff.
• Court: Indiana Appellate Court

Page 769

632 N.E.2d 769

Ronald W. RITZ, Appellant-Defendant, v. INDIANA AND OHIO RAILROAD, INC., PSI Energy, and Cincinnati

Bell Telephone Company, Appellees-(Third Party Defendants), v. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, Indiana, Plaintiff.

No. 24A01-9307-CV-218.

Court of Appeals of Indiana First District.

April 14, 1994.

Rehearing Denied June 14, 1994.

Robert J. Delaney, Richmond, for appellant.

Lowell C. McMillin, Brookville, Michael A. Douglass, Liberty, John B. Scheidler, Plainfield, Edwin R. Acheson, Jr., Cincinnati, for appellees.

ROBERTSON, Judge.

Ronald W. Ritz appeals the entry of summary judgments in favor of the defendants on his third-party complaint to quiet title against the railroad to a ninety-five foot long section of land situated between tracts of real estate owned by Ritz and for trespass and takings by the public utilities. The railroad did not seek by cross-claim to have its title quieted. We affirm in part and reverse in part.

In September, 1990, the Board of County Commissioners of Franklin County initiated an action to appropriate and condemn an easement for additional county road right-of-way on portions of Ritz' real estate. The county road runs generally in a westerly direction from a junction with U.S. 52, where it crosses the railroad's right-of-way and then the Whitewater River, both of which generally run/flow at this location in a north-south direction. Ritz' real estate is located upon the north side of the county road and on either side of the railroad's right-of-way.

In connection with Franklin County's highway improvement project, third-party defendants Cincinnati Bell and PSI Energy entered into separate written agreements with Franklin County to relocate their utility facilities to the newly-condemned county road right-of-way abutting Ritz' real estate. PSI relocated four utility poles to the new county road right-of-way upon Ritz' real estate. PSI also cut down at least two trees.

As part of the same highway improvement project, Franklin County by agreement with the railroad and without condemnation also made improvements to the ninety-five foot strip which is the subject of Ritz' third-party complaint against the railroad. PSI owns and maintains a single utility pole on the disputed real estate. With PSI's permission, Cincinnati Bell attached overhead telephone wires to PSI's utility poles, including the single pole on the ninety-five foot strip.

Ritz complains that the installation of telephone wires by Cincinnati Bell and the acts of PSI constitute both a trespass and a taking of his property without just compensation. He alleges in his complaint against the railroad that he owns the disputed ninety-five foot strip in fee, making no alternative claim of having acquired title by other means. Ritz' third-party complaint describes the parcel at issue only generally as a "tract of ground between Tract No. 7 and Tracts No. 8 and 9," tracts which are fully described in the county's complaint, "being approximately 95 feet in width ( [ + / - ] 5 feet), being 69.3 feet on the northeast side where adjacent to Tract No. 7 and 74.47 feet on the southwest side where adjacent to Tracts No. 8 and 9."

On appeal from the grant or denial of summary judgment, we use the same standard in ascertaining the propriety of summary judgment as does the trial court. Newhouse v. Farmers National Bank of Shelbyville (1989), Ind.App., 532 N.E.2d 26, 28. Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind.Trial Rule 56(C). No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court. T.R. 56(H). The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in a light most favorable to the non-movant. Newhouse, 532 N.E.2d at 28. On appeal, the party which lost in the trial court has the burden of persuading the appellate tribunal that the trial court's decision was erroneous. Oelling v. Rao (1992), Ind., 593 N.E.2d 189.

Ownership of Ninety-five Foot Parcel

In a suit to quiet title, the plaintiff is bound to prove that he was the owner of the land in controversy at the commencement of the action. Freson v. Combs (1982), Ind.App., 433 N.E.2d 55, 61. To succeed, Ritz must recover on the strength of his own title. Kozanjieff v. Petroff (1938), 215 Ind. 286, 291-2, 19 N.E.2d 563; Combs, 433 N.E.2d at 61; Coons v. Baird (1970), 148 Ind.App. 250, 265 N.E.2d 727, 730. It is not sufficient that the evidence show the railroad to be without title; the evidence must affirmatively show title in Ritz. Petroff, 215 Ind. at 291-2, 19 N.E.2d 563. Moreover, where the plaintiff specifically describes the title upon which he relies, recovery must be on title as laid. Combs, 433 N.E.2d at 61. Therefore, having alleged that he holds title in fee, Ritz may not succeed by proving he has acquired title by adverse possession.

Ritz premises his claim of title upon a warranty deed by which title in fee simple was conveyed to him to a five acre tract. Ritz made the warranty deed part of the material he designated in opposition to the railroad's motion. Ritz claims that the disputed strip is included in this five acre tract and points to the legal description of the land conveyed which shows that the conveyance is made subject to "the right-of-way of the Big Four Railroad." The parties do not dispute that the defendant is the only railroad in the vicinity, and the evidentiary materials supplied and made part of the designated evidentiary materials by PSI establish that the real estate owned by Ritz is divided by the defendant railroad. The designated evidentiary materials thus permit a reasonable inference that the ninety-five foot strip is within the acreage intended to be conveyed to Ritz. Moreover, inasmuch as the public policy of this state does not favor the conveyance of strips of land by simple titles to a railroad for right-of-way purposes, whether by deed or condemnation, and an ambiguity as to the character of an interest or title will generally be construed in favor of the original grantors and against a fee, Ross Inc. v. Legler (1964), 245 Ind. 655, 659, 199 N.E.2d 346, the recitals of Ritz' deed presumptively show that Ritz' grantor intended to convey to him the ninety-five foot strip in fee subject to the defendant railroad's easement or right-of-way.

Record title is the highest evidence of ownership and is not easily defeated. Estate of Mark v. H.H. Smith Co. (1989), Ind., 547 N.E.2d 796, 800. Evidence of fee simple title establishes a prima facie case for quiet title. Consolidation Coal Co. v. Mutchman (1990), Ind.App., 565 N.E.2d 1074, 1081, trans. denied; Otterman v. Hollingsworth (1966), 140 Ind.App. 281, 285, 214 N.E.2d 189. Ritz' deed therefore constitutes prima facie evidence of a good and valid title in fee simple. This being true, the burden of proving any defects that would render the deed void and thereby defeat Ritz' title, rests on the railroad. Allen v. Gilkison (1921), 76 Ind.App. 233, 238, 132 N.E. 12. The railroad must show it possesses a better or paramount title or right to possession than that of Ritz. Otterman, 140 Ind.App. at 285, 214 N.E.2d 189. Therefore, even though Ritz had no burden of production on the railroad's motion for summary judgment until the railroad had offered evidence tending to defeat his title as a matter of law, Ritz' warranty deed would be sufficient at trial to shift the burden of persuasion to the railroad to defeat his title.

The railroad sought to defeat Ritz' claim of title not by showing any defect in Ritz' title but by showing that it has superior record title to the parcel of land in question, its predecessor in title having acquired the land in fee from the White Water Valley Canal Co. In support of its motion, the railroad designated the Act of January 27, 1836, ch. II, 1836 Ind.Acts 6; the Act of January 20, 1842, ch. XXXVIII, 1842 Ind.Acts 37; the Act of November 16, 1865, ch. XXI, 1865 Ind.Acts 116; a warranty deed dated December 5, 1865, by which the White Water Valley Canal Company conveyed its interest in the canal property to the White Water Valley Rail Road Company and a transcription of that deed; a deed of conveyance from the White Water Valley Rail Road Company to the White Water Railroad Company, dated May 12, 1879; deeds of conveyance from the White Water Railroad Company to the Cleveland, Cincinnati, Chicago, and St. Louis Railroad Company, dated November 24, 1890, and December 17, 1913; a merger agreement entered into on December 18, 1981, between the Cleveland, Cincinnati, Chicago, and St. Louis Railroad Co. and the Penn Central Corp.; an agreed judgment entry dated October 14, 1983, passing title to the defendant Indiana and Ohio Railroad, with an attached United States Railway Association Valuation Map showing that which had been appropriated by defendant Indiana & Ohio Railroad Co, and two other deeds granting any railroad a right of way through all canal lands in Franklin County, dated May 5, 1863, and May 31, 1866, respectively.

A line of Indiana cases stands for the proposition that when the State seized land for the construction of the White Water Canal, the estate taken was the fee and that the fee was transmitted from the State to the canal company. The Brookville & Metamora Hydraulic Co. v. Butler (1883), 91 Ind. 134, 135; City of Logansport v. Shirk (1883), 88 Ind. 563, 568; Cromie v. The Board of Trustees of Wabash & Erie Canal (1880), 71 Ind. 208; Nelson v. Fleming (1877), 56 Ind. 310; The Water Works Co. v. Burkhart (1872), 41 Ind. 364, 374-5. No record of the manner by...