Smith v. Schweigerer
| Decision Date | 17 October 1891 |
| Docket Number | 15,078 |
| Parties | Smith v. Schweigerer |
| Court | Indiana Supreme Court |
From the Carroll Circuit Court.
Judgment affirmed.
L. D Boyd and J. C. Claybaugh, for appellant.
J. A Sims, for appellee.
The appellant alleges in his complaint that he is the owner in fee of a tract of land through which flows a stream called Wild Cat creek; that the appellee is wrongfully threatening to construct a dam across the stream upon the land of the appellant. Prayer for an injunction.
The appellee's second paragraph of answer alleges that William Stranahan was the owner of the land described in the complaint, as well as of another part of the same section; that Stranahan sold the land described in the complaint to the appellee for three hundred and fifty dollars; that the land was bought for a mill site, and for that purpose sold; that the purchase of the appellee included the right to water and to construct the necessary mill race; that the purchase-money was paid on the 9th day of July, 1873, and, on that day, possession of the land was delivered to the appellee, who still continues to hold possession; that on the day the purchase-money was paid Stranahan executed to the appellee a bond conditioned for the conveyance of the land and the mill privileges; that, subsequently, Stranahan and his wife executed a deed to the appellee for the property; that the dam which the appellee proposes to erect is at the place and of the height provided for in the contract with Stranahan; that the appellee has erected a mill in part and has entered upon the work of digging a mill race; that the appellant had knowledge of the possession and acts of the appellee and knew that he had expended in the work upon the mill and race the sum of two thousand dollars; that the only title which the appellant has to the land was derived from William Stranahan long after the purchase by the appellee; that the appellant, at the time he purchased, had full knowledge of the appellee's interest in the property and purchased subject to that interest. The third paragraph of the answer sets forth substantially the same facts as the second, differing from it in one respect, and that is, in alleging a mistake in describing the land intended to be conveyed.
The answers are good. The demurrer of the appellant confesses that possession was taken by the appellee that improvements were made under claim of ownership; that the appellant had notice of these facts before he purchased, and took title subject to the rights of the appellee. The appellee was first in point of time, and his possession was indicated by acts assertive of ownership, so that the appellant was put upon inquiry. As he had notice of facts making it incumbent upon him to make due inquiry, he is bound by all the knowledge which a reasonable inquiry would have imparted. Harper v. Ely, 56 Ill. 179; Kuhns v. Gates, 92 Ind. 66. But in this instance there was not merely notice of facts putting the party upon inquiry, but there was also notice that the person in possession was there as...
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