Scoville v. Hawkins, 19043
| Decision Date | 17 June 1959 |
| Docket Number | No. 2,No. 19043,19043,2 |
| Citation | 159 N.E.2d 307,129 Ind.App. 607 |
| Parties | Harold SCOVILLE, Willola Scoville, Appellants, v. Hobart HAWKINS, Sallie C. Hawkins, Appellees |
| Court | Indiana Appellate Court |
Mellen & Mellen, Bedford, for appellants.
H. Wayne Baker, Bedford, for appellees.
Appellees brought this action in 1954 to quiet title to certain real estate; to recover possession of a three foot strip thereof together with damages for its unlawful detention; and to require appellants to remove certain structures from the three foot strip. Appellants filed their answer and also a counterclaim by which they sought to quiet title to the three foot strip in themselves. Trial to the court resulted in a finding and judgment in favor of appellees. Appellants assign here as error the overruling of their motion for a new trial.
It appears from the evidence that Arthur C. Root and Lena Root, his wife, conveyed by warranty deed to one Charles A. Wynn, in 1931, real estate in the city of Bedford which was 106 2/3 feet in length north and south, and 77.3 feet in width east and west, on the north side of 22nd Street, described more fully as follows:
'Parts of Lots Eight (8) and Nine (9) in Block 'F' in Maplewood Addition to the City of Bedford described as follows: Beginning at a point 36 feet East of the Southwest corner of said Lot Eight, running thence North One Hundred Six and two-thirds feet; running thence East seventy-seven and three-tenths feet; thence South One Hundred six and two-thirds feet; thence West seventy-seven and three-tenths feet to the place of beginning.'
In the same year, 1931, Wynn constructed two houses on the real estate, one on the east part thereof and one on the west part. He had water and sewer lines laid from the street on the south at a point about half way between the two houses. A mark was placed on the sidewalk indicating the location of these lines.
Wynn deeded the west half of this real estate to Samuel Sherwood and May Belle Sherwood, husband and wife, on September 5, 1931. This half was sold at sheriff's sale to Equitable Life Assurance Society of the United States on October 12, 1935, and this insurance company deeded it to appellees on February 28, 1944.
The east half, which had not been conveyed by Wynn, was sold at sheriff's sale to the same insurance company on December 29, 1934, and this half was deeded to the appellants by the insurance company on February 10, 1944. The controversy here involves the east three feet of the land deeded to appellees, on which the appellants erected certain structures.
Appellants argue that the decision of the court is not sustained by sufficient evidence and is contrary to law because of 'the well established rule of an agreed line and the rule of estoppel and the rule of adverse possession.'
It is held that adjoining owners, uncertain of the true boundary line, may by parol agreement establish a boundary line, and the agreement is taken out of the statute of frauds if it is executed. 4 I.L.E. Boundaries § 31, p. 198. 'In the absence of fraud, when adjoining landowners agree as to their boundaries and take possession and make improvements accordingly, each is estopped from ascertaining that such boundary is not the true one, even though possession is taken for less than the prescriptive period.' 4 I.L.E. Boundaries § 32, p. 200; Seaver v. Vonderahe, 1920, 74 Ind.App. 631, 127 N.E. 206.
There is no evidence of any agreement between any of the adjoining owners as to the boundary line prior to the conveyances to appellants and appellees in 1944. Both halves of the real estate were owned by the same insurance company on October 12, 1935, until they were deeded to the parties hereto in 1944.
There was evidence that there was a half-inch metal pipe at the north end of the real estate, about six or eight inches west of the wall hereinafter mentioned. Who placed this pipe there is not disclosed by the evidence, and the evidence does not compel any conclusion as to just when it was placed there. There was also a mark on the sidewalk on the south side of this real estate which indicated where the utility lines between the two houses were located. It appears that appellants placed reliance upon a line which would extend from the pipe to the mark on the sidewalk which indicated the location of the utility lines. That this line is west of the boundary line between the east and west halves of the real estate is not disputed, nor is it disputed that appellees have record title to the west half. Record title is the highest evidence of ownership and is not easily defeated. Milhon v. Brown, 1957, 127 And.App. 694, 143 N.E.2d 573, 145 N.E.2d 307; Norling v. Bailey, 1951, 121 Ind.App. 457, 98 N.E.2d 513, 99 N.E.2d 439.
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...there was insufficient evidence to sustain the verdict rendered below, those points will be considered as waived. Scoville v. Hawkins, 1959, 129 Ind.App. 607, 159 N.E.2d 307; Wright v. State, 1958, 237 Ind. 593, 147 N.E.2d Appellants' arguments that the court erred in refusing to give to th......
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