State v. Anderson, 29873

• Citation: 170 N.E.2d 812,241 Ind. 184
• Decision Date: 15 December 1960
• Docket Number: No. 29873,29873
• Parties: STATE of Indiana, Appellant, v. Aldona ANDERSON, Appellee.
• Court: Indiana Supreme Court

Page 812

170 N.E.2d 812

241 Ind. 184

STATE of Indiana, Appellant, v. Aldona ANDERSON, Appellee.

No. 29873.

Supreme Court of Indiana.

Dec. 15, 1960.

Edwin K. Steers, Atty. Gen., Richard M. Given, Asst. Atty. Gen., George H. Dragus, Deputy Atty. Gen., for appellant.

Tennis & Cochran, Sullivan, Felix Z. Monarch, Vincennes, for appellee.

ACHOR, Judge.

This action is in the nature of an inverse condemnation proceeding as authorized under §§ 3-1701 and 4-214, Burns' 1946 Repl. [being Acts 1905, ch. 48, § 1, p. 59 and Acts 1925, ch. 201, § 1, p. 487 respectively].

The trial court awarded damages to appellee in the amount of $8,159,81, together with interest in the amount of $2,883.84. The State has brought this appeal from that judgment.

The facts insofar as they are here pertinent may be summarized as follows: In 1944 appellee purchased a parcel of real estate at the intersection of U. S. Highway 41 and State Highway 54 in Sullivan County for a truck stop and gasoline filling station, which has continued in appellee's possession to the present time.

It developed in the trial of these proceedings that easements for a substantial portion of the property here in controversy had been acquired from appellee's predecessors prior to 1932 by the State Highway Department for the purpose of widening the right-of-way at the intersection. The evidence further discloses that at the time of purchase by appellee no right-of-way markers had been placed on the land in controversy by the State Highway Department of Indiana, indicating the location of the right-of-way witn respect to appellee's property.

It further appears that, although the easements for the right-of-way in question were filed in the offices of the State Highway Department, as provided by § 36-107, Burns' 1949 Repl. [Acts 1935, ch. 88, § 4, p. 249], they were never filed of record in the office of the recorder in the county where the property is located, as provided by the general recording statutes [§§ 56-118 and 56-119, Burns' 1951 Repl. (1 R.S.1852, ch. 23, § 11, p. 232, and Acts 1923, ch. 3, § 1, p. 18, respectively)]. Therefore, the abstract of title which appellee had prepared failed to reveal any interest of the state in the land which she purchased.

It was the position of appellee during the trial below, as it is on this appeal, that, under the above circumstances, appellee stands in the position of a bona fide purchaser for value without notice of the highway easements. In support of her position, appellee relies upon the fact that when the grants here in question were executed to the state, the general statute involving recordation was in effect. These two sections provide as follows:

'No conveyance of any real estate in fee simple or for life or of any future estate, and no lease for more than three years from the making thereof, shall be valid and effectual against any person other than the grantor, his heirs and devisees, and persons having notice thereof, unless it is made by a deed recorded within the time and in the manner provided in this act.' § 56-118.

'Every conveyance or mortgage of lands or of any interest therein, and every lease for more than three years, shall be recorded in the recorder's office of the county where such lands shall be situated; and every conveyance, mortgage or lease shall take priority according to the time of the filing thereof, and such conveyance, mortgage or lease shall be fraudulent and void as against any subsequent purchaser, lessee or mortgagee in good faith and for a valuable consideration having his deed, mortgage or lease first recorded.' § 56-119.

The language of the above general recording act is sufficiently broad to include within its terms the granting of an easement. The rule stated in the case of Leviston v. Junction R. Co., 1856, 7 Ind. 597, is that since an easement is an interest in land, a grant of an easement must contain all the formal requisites of a grant of land. See also: I.L.E. Easements § 14, p. 29. The general rule, as stated by Thompson, Real Property, Vol. 1, § 384, p. 623, is as follows:

'The purchaser of land subject to an easement expressly created by grant or reservation in an unrecorded deed is not affected by it if he had no notice of the servitude. * * *'

Nevertheless, the State, in this action, contends that notwithstanding the general statutes of recordation, quoted above [§§ 56-118 and 56-119], the law in Indiana prior to 1939 did not require the recording of highway easements in the county recorder's office. It supports its position by asserting first, that § 36-107, supra, merely required the filing of such grants with the state highway department and, in further support of this position, contends that by the enactment of § 36-2940, Burns' 1949 Repl. [Acts 1939, ch. 139, § 1, p. 674], ¹ which expressly requires that such easements be filed in the county in which such real estate is located, demonstrates a clear legislative intent that prior thereto recording in the county was not required. Further, the State's position is that this section of the statute must be applied to future acquisitions only, and that it does not apply in retrospect to the particular grants here in question which were previously acquired by the state, prior to 1932. We concur with the State with regard to the fact that § 36-2940, supra, was not retroactive.

We first give our attention to appellant's assertion that § 36-107, supra, by its express terms, made special provision for the recording of highway land grants with the highway department and that, for this reason, a legislative intent is demonstrated that the general statute of recordation was not intended to apply to highway grants of right-of-way.

It is true, as appellant contends, that no act prior to 1939 [§ 36-2940] specifically required the state to file highway land grants in the county where the land was located. It is also true that Acts 1935, ch. 88, § 4 [§ 36-107], supra, provides in part as follows:

'* * * highways so selected and designated * * *, and shall have been filed in the office of the commission, * * *'

However, a cursory examination of the State Highway Commission Act [§§ 36-106-36-185] clearly indicates that the legislature, in the above quoted provision, was not attempting to regulate title transfer and notice requirements. The statute merely sets out the procedure by which the State of Indiana selects and establishes routes for new highways. We therefore cannot agree with the State that § 36-107, supra, in any way requires the purchaser of land to check the files of the State Highway Department in order to ascertain the nature and description of the interest of the state therein.

Appellant contends secondly that the enactment of § 36-2940, supra, must, in itself, be construed as sustaining a clear legislative intention that recording in the county was not necessary (in order to give constructive notice) prior to the...