State ex rel. McNutt v. Orcutt

• Decision Date: 05 February 1936
• Docket Number: 26460
• Citation: 199 N.E. 595,211 Ind. 523
• Parties: STATE ex rel. McNUTT et al. v. ORCUTT et al
• Court: Indiana Supreme Court

199 N.E. 595

211 Ind. 523

STATE ex rel. McNUTT et al. v. ORCUTT et al

No. 26460

Supreme Court of Indiana

February 5, 1936

Appeal from Monroe Circuit Court; Donald A. Rogers, Judge.

Philip Lutz, Jr., Atty. Gen., and William E. Bussell, Deputy Atty Gen., for appellants.

Kivett & Kivett, of Martinsville, and Corr & Bowen and Q. Austin East, all of Bloomington, for appellees.

OPINION

FANSLER, Judge.

Appellant began this proceeding in the exercise of the power of eminent domain for the purpose of appropriating two certain tracts of land, the first, containing 6.65 acres being the property of Minnie P. Orcutt, and the second, consisting of .85 part of an acre, being the property of Minnie P. Orcutt and Charles S. Orcutt, her husband, as tenants by the entireties. In is alleged that the land condemned is to be used for state forestry purpose. Appraisers appointed by the court fixed the damages of Minnie P. Orcutt at $ 424.50, and the damages of Minnie P. Orcutt and Charles S. Orcutt at $ 25.50. Exceptions to this report were filed by each of the parties, and the cause being at issue upon the question of the amount of damages was submitted to the jury for trial, which resulted in a verdict against appellant and in favor of Minnie P. Orcutt in the sum of $ 9,710.15, and in favor of Minnie P. Orcutt and Charles S. Orcutt in the sum of $ 17. Appellant's motions for a new trial and to modify the judgment were overruled, and these rulings are assigned as error.

It appears that appellee Minnie P. Orcutt is the owner of 120 acres of land, consisting of three 40-acre tracts lying in a row from east to west; that the 6.65 acres appropriated is an irregular piece out of the north part of the east 40 and the northeast corner of the middle 40; that appellees Minnie P. Orcutt and Charles S. Orcutt are the owners as tenants by the entireties of a 5-acre tract immediately adjoining the northeast corner of the east 40 acres of Minnie P. Orcutt's land upon the east. The .85 part of an acre appropriated is part of this 5-acre tract. The 120 acres do not touch upon any public highway, but are entirely surrounded by land owned by the state, except at one point where they adjoin the land of a stranger and the point where they adjoin the land of Minnie P. Orcutt and Charles S. Orcutt. The 5-acre tract belonging to Minnie P. Orcutt and Charles S. Orcutt is located upon a public highway. Title to the 120 acres and the 5 acres was formerly united in the same person. At that time there was a roadway leading from the public highway across the 5-acre tract and across the 6.65 acres appropriated out of the 120-acre tract, and into the 120-acre tract, which was used as a means of ingress and egress from the 120 acres, and the same road has been continuously used for the same purpose until the present time, and is the only means of ingress and egress from the 120 acres and from what will remain of the 120 acres after the appropriation of the 6.65 acres.

The case was tried, evidence was admitted, and jury instructed upon the theory that the appropriation of the 6.65 acres entirely cuts off the right to use the private way above described as a means of ingress and egress from the remaining 113 acres, and damages were assessed upon the theory that the 113 acres were entirely cut off from any means of reaching the public highway. The correctness of this theory is questioned by the errors assigned.

There is a universally accepted doctrine that: 'Where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which, at the time of the severance, is in use, and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, the law implies that with the grant to the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage in substantially the same condition in which it appeared and was used when the grant was made.' John Hancock Mutual Life Insurance Co. v. Patterson (1885) 103 Ind. 582, 2 N.E. 188, 191, 53 Am.Rep. 550. The private way in question was in use when all of the tracts of land here involved were in the possession of a common owner, and was then, and has continued to be, the only means of reaching the public highway from the interior of the 120-acre tract. Whether the 5-acre tract or the 120-acre tract was first conveyed by the common owner does not appear nor is it material, since there was an obvious servitude imposed upon the 5-acre tract, now owned by Minnie P. Orcutt and Charles S. Orcutt, in favor of the 120-acre tract, to the extent of the use of the way as a means of communication with the public highway. The same roadway has been in continuous use for more than twenty years, not only across the 5-acre tract, but also the 6.65 acres, which are by this proceeding appropriated out of the 120-acre tract. Appellees do not question that, under the rule of law above referred to, in the absence of an express provision to the contrary, a way of necessity would be implied upon a severance of the land appropriated by grant or judicial proceeding, but they insist that the rule does not apply where the severance is brought about by an exercise of the power of eminent domain; that there is no grant or contract involved in a condemnation proceeding; and that it is not a judicial proceeding, since the power of eminent domain vests in the legislative branch of the government. They rely upon those authorities which say that a way of necessity rests upon the implied intention of the parties, and contend that in a condemnation proceeding there can be no implied grants or reservations, since there is no contractual relationship.

It is unquestionably the rule that the right to a way of necessity cannot arise against the lands of a stranger. The right can only be asserted where the tract claiming the right of way and that over which it is claimed descended from a common owner. The court in Stewart v Hartman et al. (1874) 46 Ind. 331, quotes as follows: 'Kent says: 'Sergeant Williams is of the opinion, that the right of way, when claimed by necessity, is founded entirely upon grant, and derives its force and origin from it. It is either created by express words, or it is created by operation of law, as incident to the grant; so that, in both cases, the grant is the foundation of the title. If this be a sound construction of the rule, then it follows, that, in the cases I have mentioned, the right of the grantor to a way over the land he has sold, to his remaining land, must be founded upon an implied restriction, incident to the grant, and that it cannot be supposed the grantor meant to deprive himself of all use of his remaining land. This would be placing the right upon a reasonable foundation, and one consistent with the general principles of law.' 3 Kent Com. 423, original paging. Blackstone says: 'A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come to it; and I may cross his land for that purpose without trespass.' 2 Bl. Com. 36, star paging. In the same place, Mr. Chitty, in his notes, says: 'A way of necessity, when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant, for there seems to be no difference where a thing is granted by express words, and where by operation of law it passes as incident to the grant; and of course it is as necessary to set forth the title to a way of necessity as it is to a way by express grant.' And concludes that: 'There cannot legally exist a general way of necessity without reference to the manner whereby the land over which the way is claimed became charged with the burden.' It may be that the necessity of tracing title to a common owner to find a basis for the right to a way of necessity induced the statements that the right derives its force and origin from a grant, and still...