Shirk v. Bd. of Com'rs of Carroll Co.

• Decision Date: 01 June 1886
• Citation: 106 Ind. 573,7 N.E. 251
• Parties: Shirk and others v. Board of Com'rs of Carroll Co.
• Court: Indiana Supreme Court

106 Ind. 573

7 N.E. 251

Shirk and others

v.Board of Com'rs of Carroll Co.

Supreme Court of Indiana.

June 1, 1886.

Appeal from Carroll circuit court. On petition for rehearing. See 5 N. E. Rep. 705.

R. S. Taylor, for appellant.

Coffroth & Stuart, for appellee.

Elliott, J.

A very able brief has been filed by the appellant's counsel on the petition for rehearing, in which, among other things, it is said:

“I admit that the public easement in the highway which crossed the Wabash river at Carrollton was not destroyed by the construction of the canal, but continues to this day. I admit that the use of the highway was possession of the easement and notice to all the world. I admit that all such existing easements followed the canal into the hands of the purchasers under the Gapen decree. I have never controverted these propositions. My contention is that the easement in the soil does not embrace the artificial stone structures placed on it as a part of the canal.”

In stating what his contention is the learned counsel assumes, what we cannot grant, that the bridge was part of the canal. This assumption lies at the foundation of the argument, and, unless it can be made good, the whole argument falls. The facts stated in the special finding, and recited in the agreed statement of facts, show that the bridge was constructed as a part of the highway except the addition made to it for towing purposes, and therefore counsel's assumption is utterly without support. The bridge was a part of the highway. As such it was built and maintained. Counsel admits, what could not well be denied, that the possession and use by the state was notice to all the world, and the logical conclusion from this admission, which no ingenuity of invention, however great, can escape, is that the purchasers of the canal knew that the bridge was part of the highway, and not part of the canal.

If, therefore, the state had an interest in the bridge distinct from that owned for canal purposes, it still retains it, for the appellant knew that the highway bridge was no part of the canal, and the decree on which his title is founded orders a sale of the canal, and no other property is embraced by its terms or is within its scope. The agreed statementof facts filed as part of the evidence thus states what property was sold under the decree, to-wit: “That part of said canal lying between the Ohio state line and the western boundary of the city of Lafayette.” If the appellant's grantor bought the canal, as it is agreed he did, we can perceive no possible ground upon which it can be claimed, with even the feeblest appearance of justice, that he got a highway bridge forming no part of the canal. If the purchasers of the various canals constructed under the internal improvement laws of the state obtained, by virtue of their purchase under the decrees directing...