Roush v. Roush

• Decision Date: 10 January 1900
• Docket Number: 18,723
• Citation: 55 N.E. 1017,154 Ind. 562
• Parties: Roush et al. v. Roush
• Court: Indiana Supreme Court

55 N.E. 1017

154 Ind. 562

Roush et al. v. Roush

No. 18,723

Supreme Court of Indiana

January 10, 1900

Rehearing Denied May 9, 1900.

From the Huntington Circuit Court.

Affirmed.

J. B Kenner, U. S. Lesh and B. M. Cobb, for appellants.

James C. Branyan and John S. Branyan, for appellee.

OPINION

Monks, J.

Appellee brought this action to quiet her title to an easement in a way ten feet wide on the north side of her real estate, and to remove an obstruction placed there by appellants. Appellants' demurrer to the complaint was overruled. Appellants filed a cross-complaint alleging that they and their grantors had been in quiet, peaceable, exclusive, and uninterrupted possession of the real estate in dispute for more than twenty years before the commencement of the action, and asking that their title thereto be quieted. The case was put at issue, and a trial thereof by the court resulted in a finding and judgment in favor of appellee. Appellants obtained a new trial as of right, and the cause was tried by a jury, and a general verdict returned in favor of appellee. Answers to interrogatories submitted by the court were also returned with the general verdict. Over a motion by appellants for a judgment on the interrogatories, notwithstanding the general verdict, and a motion for a new trial, judgment was rendered on the verdict in favor of appellee.

The assignment of errors calls in question the action of the court in overruling the demurrer to the complaint, appellants' motion for a judgment on the answers to the interrogatories, notwithstanding the general verdict, and appellants' motion for a new trial.

It is alleged in the complaint, among other things, "that appellee and her husband, under whom she holds title, have owned certain real estate [describing it] for more than twenty-seven years, and for more than twenty-five years there has been an alley, ten feet wide, along the north side thereof, between the lands of appellee and the lands owned by appellants, dedicated by deed; that said alley has been open and used by appellee and appellants for more than twenty-five years, and a fence run along each side thereof, and buildings have been erected, and improvements made with reference to where it is now and has been for twenty-five years, and the same has been used by the owners of said lands as an appurtenant way during said time, and by others for egress and ingress, and is necessary to the enjoyment and use of their said properties, and was there located by deed of the parties under whom appellants claim title for more than twenty-five years last past, and was so of record when appellant, Matilda Roush, purchased the land which she has on the north side of said alley; and that said alley was there located, opened, and used when she and her husband entered into the possession thereof, as they well knew." Said allegations show that appellee, as the owner of real estate abutting on said way, was entitled to the use of the same, and therefore entitled to have the obstruction placed there by appellants removed. If appellants desired said allegations made more specific and certain in any way, a motion to make more specific, and not a demurrer for want of facts, was the remedy.

It is next insisted by appellants that the court erred in overruling their motion for a judgment in their favor on the answers to the interrogatories. Appellants claim that "the verdict is not a general verdict, but only finds a few facts specially." The verdict is as follows: "We the jury find for the plaintiff against the defendants, that they have obstructed the alley described in the complaint, that said obstruction should be abated and removed therefrom, and that plaintiff's easement in said alley should be quieted thereto, and we find for plaintiff against defendants, on the cross-complaint. [Signed] E. Brightmore, Foreman of Jury." The part of the verdict which precedes the first punctuation mark is a general finding in favor of appellee against appellants. Then follows a finding as to the obstruction of the alley, and that the same should be removed, which is followed by a general finding in favor of appellee and against appellants on their cross-complaint. The verdict is clearly a general one determining all material issues in favor of appellee, and, unless the answers of the jury to the interrogatories are in irreconcilable conflict therewith, the court did not err in overruling appellants' motion for a judgment in their favor. Consolidated Stone Co. v. Summit, 152 Ind. 297, 300, 53 N.E. 235, and cases cited.

Appellants call attention to one interrogatory only, which they claim is in conflict with the general verdict. This interrogatory sets out what purports to be a copy of a deed made by Charles Bickle and Anton Roush in 1868, conveying to William and James Ewing the right of way over a strip of ground ten feet wide on out lot two in the original plat of the town of Huntington, describing it; the east end of said strip being the west end of the right of way conveyed by said Ewings to said Roush and Bickle, and the west end thereof, Cherry street. The jury found in answer to said interrogatory that said deed was executed and delivered by the grantors to the grantees named therein on November 29, 1868. The rule is that answers to interrogatories cannot be aided by any presumption or intendments, but that all reasonable presumptions must be indulged in favor of the general verdict. Consolidated Stone Co. v. Summit, supra, p. 301, and cases cited. Under the rule stated, the fact that such a deed was executed is not in irreconcilable conflict with the general verdict.

It is next insisted that the court erred in overruling the motion for a new trial. The first and second causes for a new trial are, that the verdict is not sustained by sufficient evidence, and that the same is contrary to law. While there is a conflict in the evidence as to some of the facts, there is evidence which shows that out lot two in the original plat of the town of Huntington abuts upon Jefferson street on the east and Cherry street on the west; that a part of said out lot, 132 feet north and south, abutting on Jefferson street and extending back the same width 140 feet and three inches was, on and before November 29, 1868, the property of James and William Ewing, the north half thereof being the property of James, and the south half being the property of William; that the part of said out lot immediately west of the part belonging to the Ewings, being 132 feet north and south, and extending from the Ewing property west to Cherry street, was, on and before said date aforesaid, the property of Charles Bickle and Anton Roush, seventy-three feet off of the north side of said tract belonging to said Bickle, and the remainder, being fifty-nine feet off of the south side, belonging to said Roush. The deed to Anton Roush for said fifty-nine feet was executed in 1867 by Tuisch and wife, and immediately below the description of the real estate it contained the following provision: "And said party is to grant a right of way on the north side of said fifty-nine feet, to be five feet wide, for an alley." The north line of a way ten feet wide--five feet on each side of the line between the real estate of appellants and appellee,--extending from Cherry street to the west boundary of the real estate of the Ewings, would be seven feet south of the north line of the way on the line between the real estate of the Ewings as described in their deed to Bickle and Roush, and this would only leave a space of three feet between the north line of such way on appellants' and appellee's real estate and the south line of the way on the Ewings' real estate to pass through. A way so opened from Jefferson street to Cherry street could only be used by persons on foot and on horseback, on account of the width being only three feet where said ways would meet if so opened. The four parties, for the purpose of having a private way extending from Jefferson street to Cherry street, so that it could be used for ingress and egress to and from the real estate abutting thereon, on November 29, 1868, executed two deeds. One was executed by James and William Ewing to Charles Bickle and Anton Roush, conveying to them the right of way over a strip ten feet wide running from Jefferson street west 140 feet and three inches, one-half of said way to be on each side of the line dividing the lands of James and William Ewing, "said right of way to be used by said Roush and Bickle for ingress and egress to and from their property at the west end of said strip, on foot or horseback or with empty wagons, but said grantees are not to pass over said strip with loaded wagons or drays." The deed from Bickle and Roush to the Ewings conveyed a right of way ten feet wide commencing at the west end of the way conveyed by said Ewings to Bickle and Roush, the center of which way was sixty-six feet south of the north line of said out lot two, and running from said point in a westerly direction to a point on the west line of said out lot on Cherry street seventy-three feet south of the northwest corner of said out lot, said strip "to be used by said Ewings for the purpose of ingress and egress to and from their said property at the east end of said strip, on foot, on horseback, and with empty wagons, but the said grantees are to have no right to pass over the said strip with...