Seaver v. Vonderahe
| Decision Date | 28 April 1920 |
| Docket Number | 10,250 |
| Citation | 127 N.E. 206,74 Ind.App. 631 |
| Parties | SEAVER v. VONDERAHE ET AL |
| Court | Indiana Appellate Court |
Rehearing denied November 16, 1920.
Transfer denied January 14, 1921.
From Howard Circuit Court; William C. Overton, Judge.
Action by Benjamin W. Seaver against Louis C. Vonderahe and another. From a judgment for defendants, the plaintiff appeals.
Affirmed.
Bell Kirkpatrick, Purdum & Voorhis, for appellant.
Wolf & Barnes and Overson & Manning, for appellees.
Appellant filed his complaint in this action against appellees in two paragraphs. By the first paragraph he seeks to quiet his title to certain real estate in Howard county, Indiana, and by the second he seeks to obtain a judgment for the possession thereof. Each of said paragraphs are in the simple form of actions seeking such relief, and describe the real estate as follows: Commencing at the northeast corner of the northwest quarter of section 29, township 24 north, range 3 east, as established by the United States government survey thereof, running thence west 41 1/2 feet to the center of a stone, thence in a straight line to the center of a stone at the southeast corner of said northwest quarter, thence in a straight line to the place of beginning. To this complaint appellees filed an answer in general denial. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellees. From this judgment appellant has appealed, and has assigned the action of the court in overruling his motion for a new trial as the sole error on which he relies for reversal.
On the trial there was substantial evidence tending to show that in 1912 one Phineas Rayle, appellant's remote grantor, was the owner of the northwest quarter of section 29, township 24 north, range 3 west in Howard county, Indiana, and that appellee, Louis C. Vonderahe, was the owner of the northeast quarter of said section; that the line dividing said tracts of land was unknown to either of said owners, and by reason of such fact they were in doubt as to its location; that for the purpose of removing such uncertainty they met together in the spring of said year, and with the aid of the county surveyor established what they believed to be the correct line; that each of said owners agreed that said line so established should be the dividing line between their said tracts of land; that in pursuance of said agreement they divided said line for the purpose of erecting and maintaining a partition fence between their said farms; that soon thereafter each party constructed a substantial fence along his portion of said line, and said Vonderahe entered into the possession of the land in question, and has used and cultivated the same as his own under said agreement ever since; that, in addition to the construction of his portion of said partition fence, said Vonderahe planted a grove of 137 catalpa trees at the north end of the land in question, adjacent to said partition fence, and has constructed other improvements with reference thereto; that appellant holds a deed for said northwest quarter as a remote grantee of said Phineas Rayle.
Appellant contends that the court erred in giving certain instructions requested by appellees. His objection to instruction No. 1, so given, is based on the fact that it informed the jury that the answer in general denial, filed by appellees, placed on appellant the burden of proving the material allegations of at least one paragraph of his complaint by a fair preponderance of the evidence, while § 1102 Burns 1914, § 1056 R. S. 1881, relieved him of the necessity of proving one of the material allegations of the second paragraph of the complaint, viz., that appellees were in possession of the real estate in question. It may be conceded that the filing of such answer had the effect for which appellant contends. Voltz v. Newbert (1861), 17 Ind. 187; Holman v. Elliott (1882), 86 Ind. 231; Carver v. Carver (1884), 97 Ind. 497; Weigold v. Pross (1892), 132 Ind. 87, 31 N.E. 472. But it does not necessarily follow that the giving of said instruction was reversible error. While it is the general rule that the giving of an instruction which places the burden of an issue on the wrong party, such rule yields to the exception that, where the record affirmatively shows that such error was harmless, the judgment will not be reversed. Brumbaugh v. Mellinger (1918), 68 Ind.App. 410, 120 N.E. 676. In the instant case the uncontradicted evidence shows that the land in question lay on the east side of a certain fence, constructed by the adjacent owners on a line run by the county surveyor at their joint request; that appellees were in possession thereof, and based their defense on a claim that appellant was estopped from questioning either their title, or their right, to the possession of such real estate. Under these circumstances the giving of said instruction No. 1, if error, was harmless.
Appellant also contends that the court erred in giving instructions numbered 3, 4 and 5 at the request of appellees. These instructions relate to the question of estoppel, where adjoining landowners, who are in doubt as to the location of their division line, meet and establish such line by an agreement in order to make the same certain, and thereafter make substantial improvements with reference thereto, and occupy the adjacent land in accordance with such agreement. These instructions correctly state the law as declared in the cases of Furst v. Satterfield (1909), 44 Ind.App. 613, 89 N.E. 906, and Welborn v. Kimmerling (1910), 46 Ind.App. 98, 89 N.E. 517, 91 N.E. 982, to which we adhere. There was evidence introduced on the trial, as indicated above, which made the giving of instructions on that question proper. We therefore conclude that the court did not err in giving any of said instructions.
Appellant predicates error on the action of the court in refusing to give instructions numbered 1, 2, 4, 5 and 6 requested by him. Instruction No. 1 merely gives a description of the real estate in controversy, and states that appellant is seeking to quiet his title thereto, and to recover possession thereof. Instruction No. 2 states that the identity of the land in controversy is not in dispute, and that appellees concede that they are in possession thereof. In view of the undisputed facts shown by the evidence given on the trial of the cause, it is obvious that appellant was not harmed by the...
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