Shedd v. American Maize Prods. Co.

• Citation: 108 N.E. 610,60 Ind.App. 146
• Decision Date: 16 April 1915
• Docket Number: No. 8372.,8372.
• Parties: SHEDD et al. v. AMERICAN MAIZE PRODUCTS CO.
• Court: Court of Appeals of Indiana

60 Ind.App. 146

108 N.E. 610

SHEDD et al.

v.AMERICAN MAIZE PRODUCTS CO.

No. 8372.

Appellate Court of Indiana.

April 16, 1915.

Appeal from Superior Court, Lake County; Charles W. Hanley, Special Judge.

Action by the American Maize Products Company against Charles B. Shedd and others. Judgment for plaintiff, and defendants Shedd appeal. Affirmed.William J. Whinery, of Hammond, Harry S. Mecartney, of Chicago, Ill., and Fred Barnett, of Hammond, for appellants. Peter Crumpacker, F. C. Crumpacker, and C. B. Tinkham, all of Hammond, for appellee.

FELT, J.

On September 29, 1909, appellee, American Maize Products Company, filed its verified complaint asking the issuance of a temporary restraining order, and that upon final hearing it be made permanent, enjoining appellants from interfering with the construction of certain pipe lines from appellee's factory over the land of appellants, Charles B. and Edward A. Shedd (hereinafter referred to as “the Shedds”), and into Lake Michigan, by extending the pipe line from said land in and through what is known as Wolf river harbor or outlet, and thence into Lake Michigan. Appellee asserts the right so to do by virtue of a certain grant from the Shedds, the particulars of which will more fully appear in this opinion.

The complaint is in one paragraph, and alleges, in substance, that appellee is a corporation, and owns and operates a plant in the city of Hammond, Ind., located about one-half mile from the shore of Lake Michigan, in which it manufactures certain food products from grain; that on November 12, 1906, the Shedds conveyed to the Western Glucose Company the real estate on which said plant is located; that the Shedds at that time owned, and still own, all the natural land lying between the land so conveyed and the shore of Lake Michigan, subject to certain assessments; that at the time said conveyance was made to appellee's predecessor, the Western Glucose Company, as a part of the consideration therefor, the Shedds granted to said company, its successors and assigns, an easement for a right of way under their land lying between the lands so conveyed and the shore of Lake Michigan to connect said land with Lake Michigan by two pipe lines of iron, vitrified tile, or cement, “to be not less than 24 inches in diameter, and to be laid so that the tops thereof should be at least one foot below the Chicago city datum”; that thereafter the Western Glucose Company constructed the pipe lines to within a few feet of the water line of the shore of Lake Michigan and near to Wolf river outlet; that the purpose of the construction of said pipe lines was to provide a sewer outfall for its plant and for a water intake whenever the company saw fit to extend its pipe line far enough into the lake to provide an efficient supply of water, all of which was well known to the Shedds at the time they granted said easement; that in February, 1908, said Western Glucose Company sold and conveyed to appellee all its right and title in and to its manufacturing plant and to the real estate, including the easement and right of way for said pipe lines; that on September 12, 1909, appellee procured a permit from the United States government to extend said pipes due north of their termination aforesaid, and to dredge a channel in said lake in which to lay said pipe; that it is now proceeding with said work; that it had purchased large amounts of material for the work, and has at this time dredged said channel to within about 30 feet of the shore of Lake Michigan and the termination of the pipe line aforesaid; that the Shedds claim to own the land along the shore of Lake Michigan at the point where the pipes terminate, and for a long distance west and north thereof, where said pipes are stored, and also claim to have certain rights in the submerged land under the waters of Lake Michigan adjoining the shore line aforesaid, the course and extent of which claim is unknown to appellee; that, because of such claim, appellee, its contractors and employés, before said work was begun, obtained the permission of the Shedds to throw the sand and earth dredged from said channel on the shore of the lake, and to build a tool shanty thereon, and to lay pipes thereon until used; that some time after the pipes had been so placed and the shanty constructed and the dredging of the channel begun, the Shedds served written notice on appellee and its contractor doing said work to immediately stop work and not to move the pipe stored as aforesaid; that the Shedds, their agents, servants, and employés, are now threatening to stop the work by force and violence, and to prefer false charges against the officers of appellee company, its agents, contractor, servants, and employés, and cause their arrest, charged with criminal trespass, thereby hindering and delaying the progress of the work; that the defendants Henry Fisk and William Hyar are the agents and employés of the Shedds, and are at the place where said work is being done, and where the pipe is stored, and are threatening to stop the work by force and violence, and refuse to allow appellee or its contractor to remove the pipes so stored as aforesaid and place them in position in the channel; that the Shedds have a large force of men within easy call to prevent the progress of the work, and are now threatening so to do; that the Shedds are nonresidents of the state of Indiana, and reside in the city of Chicago, Ill., and have no right, title, or interest whatever in the submerged land under the waters of Lake Michigan at the point where said plaintiff is undertaking to extend its pipe line, or in and to the land along the shore of Lake Michigan on which said shanty is constructed and on which pipes are stored and on which appellee is throwing sand and earth taken from the channel as aforesaid; that said land is not the natural land, but the lake has been filled in by persons and corporations other than the Shedds; that the Shedds have never purchased said land or acquired title thereto from any person or corporation, or from the state of Indiana, have never had the same surveyed and the survey filed with the proper state authorities, and the land so built into Lake Michigan belongs to the state of Indiana, and the Shedds have no right to the exclusive possession thereof, nor have they any right to interfere with appellee's possession thereof for the purposes aforesaid. Facts are averred to show that great damage would result from delay in issuing the temporary restraining order.

Appellants answered the complaint by general denial and by several paragraphs of affirmative answer, and also filed a cross-complaint. The cause was tried on the issues formed by the general denial, the second paragraph of answer, and on the fifth paragraph of cross-complaint. Upon request the court made a special finding of fact, and stated its conclusions of law thereon, which were in favor of appellee. Appellants' motion for a new trial was overruled, and judgment was rendered against appellants on the conclusions of law perpetually enjoining them from interfering with appellee in the laying of its pipe lines into Lake Michigan as alleged in the complaint.

The errors assigned and relied on for reversal are the overruling of the demurrer to the complaint for insufficiency of the facts alleged to state a cause of action, error in each of the conclusions of law stated on the special finding of facts, and the overruling of appellants' motion for a new trial.

The objections urged against the sufficiency of the complaint are, in substance, that it does not allege any located line or easement, does not describe or definitely locate the alleged easement or furnish the means of definitely locating the same, or of ascertaining the shape, dimension, or position of the easement or right of way, and contains no description of the lands over which the alleged way is granted; that it contains no allegation that an easement or right of way has been located or designated, or that a request has been made by appellee to appellants, Shedd and Shedd, the owners of the servient estate, to select the location of the way for such easement, and that they have failed to so do, or that they had designated an unreasonable location for the way, or that appellee had selected the route for the pipe line.

On the other hand, appellee insists that this is not an action to establish or locate an easement or to quiet title thereto, but to enjoin the appellants from interfering with appellee's enjoyment of an easement which has been granted to it by appellants, and which carries with it certain riparian rights.

[1] An indefinite easement or right of way which is not specifically located and described is too indefinite to be established and protected by a court of equity. Fox v. Pierce, 50 Mich. 500, 15 N. W. 880;Bright v. Allan, 203 Pa. 386, 53 Atl. 248;Thomas v. McCoy, 30 Ind. App. 555, 66 N. E. 700;Ritchey v. Welsh, 149 Ind. 214, 48 N. E. 1031, 40 L. R. A. 105;Liggett v. Lozier, 133 Ind. 451, 32 N. E. 712. A complaint to enjoin encroachments upon or interference with an easement or right of way is insufficient when it does not furnish the means or data for entering a definite decree, if the facts alleged be admitted or proves, including a definite description as to dimensions and location of such way. To obtain injunctive relief the right to the particular and definite way must be clear. Evansville, etc., Co. v. Butts, 26 Ind. App. 418, 59 N. E. 1070;Price v. Bayless, 131 Ind. 437, 31 N. E. 88;College Corner, etc., Co. v. Moss, 92 Ind. 119-123;Lenninger v. Wenrick, 98 Ind. 596;Marion County Lumber Co. v. Tilghman Lumber Co., 75 S. C. 220, 55 S. E. 337;Fox v. Pierce, 50 Mich. 500, 15 N. W. 880, 881;Hagerty v. Lee, 45 N. J. Eq. 1, 15 Atl. 399;Manbeck v. Jones, 190 Pa. 171, 42 Atl. 536; Jones on Easements, §§ 883, 884; 14 Cyc. pp. 1216-1218.

[2][3][4] When an unlocated right of way is granted or reserved, the...