Shirk v. Bd. of Com'rs

• Decision Date: 11 March 1886
• Citation: 5 N.E. 705,106 Ind. 573
• Parties: Shirk and others v. Board of Com'rs and others.
• Court: Indiana Supreme Court

106 Ind. 573

5 N.E. 705

Shirk and others

v.Board of Com'rs and others.¹

Supreme Court of Indiana.

Filed March 11, 1886.

Appeal from Carroll circuit court.

R. S. Taylor, for appellant.

Coffroth & Stuart, for appellee.

Elliott, J.

In 1841 a public highway was laid out through Carroll county. The line of this highway crossed the Wabash river at a point not far from the town of Carrollton, and since it was opened the highway has been continuously used by the public. In 1842 a dam was built by the state across the Wabash river, a short distance below the line of the highway; and the pond formed by this dam constituted a part of the Wabash & Erie Canal. This canal was constructed by the state under the internal improvement acts passed some years before. During the years 1842 and 1843 a bridge was built across the river on the line of the highway. It was built on stone abutments and piers, the piers resting on submerged timbers. The superstructure was a wooden one, combining a wagon and carriage way and a towing-path bridge, for the towing horses of the canal. The towing path part of the bridge “was attached to the structure as a narrow wing supported by cross-timbers extending under the other part of the bridge.” The bridge was used for public travel and by the persons navigating the canal. The public used it in connection with the highway, and those navigating the canal used the tow-path part to transfer the horses employed in towing the boats across the river. Pursuant to the laws enacted by the legislature the canal and its appurtenances were pledged by the state to secure money borrowed by it. In 1873 the superstructure of the bridge was blown down, and was replaced by the county of Carroll. The canal was abandoned in 1875, but the bridge continued to be used as a part of the highway until February, 1881, when the superstructure was carried away by the ice, leaving the stone piers and abutments standing. In 1880 the dam was destroyed, “and the water let out of the pond, so that the timber foundations of the piers were left uncovered and exposed to the air and decay, and, in order to restore the bridge to a safe and fit condition for public travel, it was necessary to take down the piers, and replace them on other foundations.” By virtue of a decree of the circuit court of the United States rendered in 1874, the canal was sold in February, 1876, and from that sale the title of the appellants is derived. The controversy in this case is as to the right of the commissioners of Carroll county to make use of the materials in the piers in rebuilding the bridge.

Our decisions establish the doctrine that the purchasers of the canal acquired such rights as the state had in the lands appropriated for canal purposes, and that the estate which the state acquired was a fee. These decisions, although they have been yielded to with reluctance, must be considered as declaring the law of the state. Water-works Co. v. Burkhart, 41 Ind. 364;Nelson v. Fleming, 56 Ind. 310;Cromie v. Board, etc., 71 Ind. 208;City of Logansport v. Shirk, 88 Ind. 563;Brookville, etc., Co. v. Butler, 91 Ind. 134; S. C. 46 Amer. Rep. 580. Upon the authority of these cases we affirm that the estate taken by the state in the lands appropriated for the canal was a fee, and that the appellants succeeded to that estate. But, while the appellants acquired all the estate of their remote grantor, the state of Indiana, in the canal and its appurtenances, they acquired nothing more. If the estate which they acquired was burdened with any charge or easement which was open to view, and was one which the appellants were bound to take notice of, then it remains subject to that burden in their hands. It is not essential that a grantee should have actual knowledge of the burden, for it is a familiar doctrine that one who has means of knowledge is presumed to have knowledge. This doctrine is often applied to easements, and the owner of the dominant estate, in a visible and open way across the land of another, cannot be deprived of his rights, although the servient estate may have been purchased by one who has no actual...