Smith v. Mesel
| Decision Date | 11 March 1949 |
| Docket Number | 17812. |
| Citation | 84 N.E.2d 477,119 Ind.App. 323 |
| Parties | SMITH et al. v. MESEL. |
| Court | Indiana Appellate Court |
Appeal from Randolph Circuit Court; John W. Macy, Judge.
J. Gordon Meeker and Moran & Abromson, all of Portland, for appellants.
Roscoe D. Wheat and James W. Grimes, both of Portland, for appellee.
The appellee Mesel brought this action in replevin and conversion against the appellants Smith and archer. The court found the facts specially, stated conclusions of law thereon, and rendered judgment for appellee in the sum of $1617.50.
Of the errors assigned, the appellants have briefed only the proposition that the court erred in overruling their motion for new trial, which asserts the finding is not sustained by sufficient evidence and is contrary to law. Other assigned errors are therefore waived. Rule 2-17(f).
The appellants are entitled to have this court determine (1) whether among the special findings there is one which is essential to the decision made by the court which is not supported by any evidence, or inferences reasonably to be drawn therefrom, and (2) whether the undisputed evidence establishes a controlling fact within the issues which is not found, but which if found, would necessitate different conclusions of law and a different judgment based thereon. Central Pharmacal Co. v. Salb, 1938 106 Ind.App. 495, 13 N.E.2d 875; Treesh v. DeVeny, 1945, 116 Ind.App. 305, 64 N.E.2d 41; Boyer v. Leas et al., 1946, 116 Ind.App. 502, 64 N.E.2d 38, 591.
We condense the findings as follows: On and before April 17 1942, Indiana Truck Farm Company owned a farm in Lake County. Through some arrangement, the details of which are not disclosed by the evidence, a concern known as Bonded Oil Company acquired the right to drill an oil well on said land, and it employed the appellee to furnish all the equipment, machinery, pipe and labor for the drilling of such well.
Pursuant to that arrangement the appellee took said equipment including the pipe in question, to the farm and commenced the drilling of the well, which was continued through 1942, 1943 and 1944. The shaft was sunk approximately 2000 feet into the ground, but said well proved to be unproductive.
Upon discovery of that fact, Indiana Truck Farm Company requested the appellee to remove his property and equipment from said land. He removed the above ground equipment late in the summer of 1944, but was unable to remove the pipe because he was not equipped to pull it himself and he was unable to hire anyone else to do it for him.
One Duncan purchased the land from Indiana Truck Farm Company in 1945 and took title thereto by a deed which contained no reservation of said pipe or on account of said well. Previous to purchasing and taking title to said land Duncan did not examine the public records of Lake County, nor did anyone make such examination on his behalf, nor did he receive any abstract of title for said land. During the time the well was being drilled Duncan observed the drilling operations and knew a well was being drilled on said land, and after the machinery and equipment were removed the casing protruded from said well about 2 1/2 feet above the level of the ground, and Ducan saw the same and knew what it was before he bought the land and knew it was there when he took title to the land and entered into possession thereof.
In July 1946 the appellee employed Archer to pull the pipe from said well. He employed Smith to haul the pipe away after the same had been pulled, and he paid Archer $200 and Smith $25 on account of the services to be rendered. Smith and Archer proceeded to the land and undertook to pull the pipe, but Duncan, who knew Smith and Archer were in the employ of the appellee, refused to permit the removal of the pipe because he claimed ownership of it in himself. Smith and Archer returned to their homes, the appellee informing them he would get the matter adjusted so they could return and pull the pipe.
About three months later, pursuant to a call from Duncan, and without the knowledge or consent of the appellee, Smith and Archer went to Lake County and negotiated with Duncan concerning the pipe, and as a result pulled the pipe, paid Duncan $750 for it and received a bill of sale.
Smith hauled the pipe away and sold it. The removal and sale of the pipe was without the knowledge or consent of the appellee. The appellants refused appellee's demand for the pipe. The pipe after removal was of the fair market value of $1617.50.
As we understand them, the appellants first complain of the court's finding with reference to notice. They say the court's failure to find there was a written lease of record is equivalent to a finding that there was none of record; and they complain of the finding...
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