Roby v. Eggers

• Decision Date: 17 December 1891
• Citation: 130 Ind. 415,29 N.E. 365
• Parties: ROBY v. EGGERS.
• Court: Indiana Supreme Court

130 Ind. 415

29 N.E. 365

ROBY

v.EGGERS.¹

Supreme Court of Indiana.

Dec. 17, 1891.

Appeal from circuit court, Porter county.

Ejectment by Edward Roby against Frederick Eggers. Judgment for defendant. Plaintiff appeals. Affirmed.

H. A. Gillett and A. L. Jones, for appellant. Addison C. Harris, E. D. Crumpacker, C. S. Spencer, and Linton Cox, for appellee.

COFFEY, J.

This was an action in ejectment commenced in the Lake county circuit by the appellant against the appellee on the 13th day of January, 1875. The land in dispute lies in a triangle formed by the state line and Lake Michigan, at the extreme north-west corner of the state. The triangular tract was cut into lots by the United States survey. The north lot is numbered 1, and the lot immediately south and adjoining No. 1 is numbered 2. It was swamp land, and was formally conveyed by the United States to the state of Indiana by swamp-land patent No. 4, on the 24th day of March, 1853. It is situated in section 36, township 38 north, of range 10 west, in Lake county. Eggers, the appellee, purchased and paid for lot No. 1 on the 19th day of July, 1853, and the state executed to him a patent therefor on the 17th day of January, 1854. The state executed a patent to George W. Clark for lot No. 2 on the 3d day of July, 1854. The cause was tried in the Lake circuit court at the February term, 1877, resulting in a judgment for the defendant. The plaintiff was granted a new trial, under the statute, as of right, and at the April term of the court, in the year 1880, the cause was dropped from the docket, with an agreement that it might be reinstated by either party at any time on motion. The cause was reinstated on motion of the appellant, Roby, on the 4th day of September, 1888, and the venue was changed to the Porter circuit court. At the January term of that court for 1889 the cause was retried, resulting in the judgment from which this appeal is prosecuted. The jury returned a special verdict, from which, among other things, the following facts appear: The line dividing the states of Indiana and Illinois was first run from the Wabash river to Lake Michigan about the year 1821. Under an act of congress, it was retraced about the year 1833, and the government erected a monument on the line, as retraced, 159,323 miles north of the Wabash river. The monument is about 790 feet south of the lake shore. In the year 1851, the land being vacant, the appellee, Eggers, settled upon what he believed to be lot No. 1. He found a stake driven in the earth on the state line south of the monument, at a point 1,704.06 feet south of the center of the monument. He also found a similar stake just above high-water mark on Lake Michigan 1,538 feet distant from the stake first mentioned. The line running from the stake on the state line to the stake on the lake shore bears 3 deg. and 20 min. south from a due east and west course. Eggers, believing that these stakes marked the south line of lot No. 1, in the year 1851 built a shanty on lot No. 2, north of said line, and began the erection of a fence between the stakes on the line, and also a fence from the stake on the state line north to the monument, for the purpose of inclosing the land, which fences were completed in the year 1852. In the same year he plowed and cultivated a portion of the land north of and down to the fence. In the latter part of 1852 he built a frame house, consisting of several rooms, within his inclosure, in which he resided. The house was built on lot No. 1, about 800 feet north of the fence. In the year 1855 he planted an orchard on the premises, and in the same year, one of his children dying, he buried it on the premises, and has ever since maintained the grave. The grave is about 350 feet south of the house, and the orchard is between the house and grave. From the time he constructed the fence until the commencement of this suit, Eggers each year cultivated the tillable land north of the fence, and up to the fence. The portions not tillable and growing grass were every year during that time mowed or pastured by him. During all this period he claimed to own all of the land north of the fence, except such as he sold to certain railroads for right of way. Clark, after he became the owner of lot No. 2, was often at the house of Eggers, and knew of the occupancy and of the existence of the fence. The fence at times was partially destroyed by fire or other causes, but was restored within a reasonable time, from time to time, until the year 1871, when it was principally destroyed by fire, and rebuilt in the year 1873 or 1874; but from the time it was burned down until it was rebuilt there were portions of it, and many stakes and posts along the line, clearly and visibly marking the same; and during all the time from the year 1851 to the commencement of this suit Eggers was in open and exclusive possession of all of the land north of the fence, running eastwardly from the state line to Lake Michigan, and during all that time openly and notoriously claimed the same as his own.

George W. Clark died in the year 1866, testate; appointing Jacob Forsythe and Robert Clark executors of his will. The will was probated and recorded in Lake county on the 26th day of December of that year. He devised lot No. 2 to Caroline M. Forsythe, Sarah J. Clark, Robert D. Clark, and Henry F. Clark. On the 1st day of December, 1868, the executors, under competent authority, conveyed lot 2, with other lands, to said Caroline M. Forsythe, and on the same day Sarah J. Clark, Harriet S. Clark, Robert D. Clark, and Henry F. Clark conveyed the same real estate to her by quitclaim deed. On the 9th day of March, 1869, Caroline M. Forsythe conveyed by warranty deed to Daniel A. Jones, Oramel S. Hough, Charles M. Culbertson, and Charles C. Raymond. On the 15th day of July of the same year, Raymond conveyed to Herbert B. Reed. On the 15th day of July, 1873, Jones, Culbertson, Hough, and Reed conveyed to the appellant, Roby. On the 7th day of August, 1873, Roby conveyed to Dayton S. Morgan; and on the next day (August 8th) Morgan conveyed all of lot 2, in the possession of the appellee Eggers, to appellant, Roby, and also all the remainder of the north 20 acres of said lot 2. At the time Roby conveyed to Morgan both Roby and Morgan claimed that the north line of lot 2 ran some distance north of Eggers' south fence, and Morgan reconveyed to Roby without any consideration, and for the sole purpose of enabling Roby to negotiate and settle with Eggers for the possession and ownership of the portion of the lot in the possession of Eggers north of his south fence. On the 7th day of August, at the time Roby conveyed to Morgan, they executed a written agreement between them fixing the ownership of the lot. Pursuant to such agreement, Roby brought this suit in his own name, as the trustee of Morgan, for the purpose of recovering that portion of the lot in the possession of Eggers, being the portion north of Eggers' south fence, for the use and benefit of Morgan. Morgan defrayed the expense of this suit until the 17th day of January, 1877, when he conveyed an undivided one-half interest to E. Ashley Smith, since which time they have jointly borne the expenses of this suit, and at the time of the trial it was prosecuted for their use and benefit, except as to a contingent interest in the land in favor of the appellant under the contract above referred to.

After this case was dropped from the docket of the circuit court of Lake county, the appellant, Roby, Morgan, and Smith determined to bring an action in ejectment in the circuit court of the United States for the district of Indiana, and on the 15th day of July, 1882, Roby directed an attorney, U. J. Hammond, to begin an action in that court in the name of Smith and Morgan, citizens of New York, against Eggers, a citizen of Indiana, for the north part of lot No. 2. On the 26th day of July of that year the complaint was filed, alleging that Morgan and Smith were the owners in fee-simple, and entitled to the possession, of the following described real estate in Lake county, to-wit: “All of the north part of lot number two, in section 36, township 38 north, of range 10 west, of 2nd principal meridian, which lies west of the track of the Lake Shore and Michigan Southern Railroad, and north of a line parallel with the north line of said lot 2, and 753 feet south therefrom.” Roby furnished an abstract of title, which was filed in the cause, showing the same deeds introduced in evidence in this cause, except the deed from Morgan to Roby, of date August 8, 1873. To the complaint in the cause Eggers filed a general denial. The cause was tried on the 20th day of January, 1883. Roby was present, and testified as a witness on behalf of the plaintiffs, and argued the cause as an attorney for them. On the 26th day of January the court rendered the following judgment: “Now come the parties by counsel, and by agreement this cause is submitted to the court for trial; and the court, having heard the evidence and being fully advised, finds for the plaintiffs, and orders and adjudges that they are entitled to, and shall have and recover of the defendant, the possession of so much of said lot 2 as lies...