State v. Tuesburg Land Co.
| Decision Date | 25 June 1915 |
| Docket Number | No. 8794.,8794. |
| Citation | 61 Ind.App. 555,109 N.E. 530 |
| Parties | STATE v. TUESBURG LAND CO. et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Laporte County; James F. Gallaher, Judge.
Action by the State of Indiana against the Tuesburg Land Company and another, in which William E. Pinney and William B. Biddle intervene. From an adverse judgment, plaintiff appeals. Reversed and remanded.Thomas M. Honan, Atty. Gen. (Adam Wise, of Plymouth, and J. E. McCullough, of Indianapolis, of counsel), for the State. Grant Crumpacker, of Valparaiso, Will R. Wood, of La Fayette, E. D. Crumpacker and Owen L. Crumpacker, both of Valparaiso, and Osborn, McVey & Osborn, of Laporte, for appellees.
This is an appeal from a judgment against appellant, the state of Indiana, in an action wherein it is sought to quiet title to something over 3,700 acres of land situated in Laporte and Starke counties.
The suit was filed in the Starke circuit court, and a trial in that court resulted in a finding and judgment against the state. On separate motions made by appellant, a new trial as of right was granted, and the cause was venued to the Laporte circuit court. A trial in that court resulted in the finding and judgment hereinafter indicated.
The complaint was in two paragraphs, each of which alleges that the appellant is the owner in fee simple of the real estate in controversy, and is in the usual form of a complaint to quiet title; the difference between the paragraphs being merely in the manner of describing the real estate.
The real estate is all in township 33 north, range 3 west, and the subdivisions of the sections involved are described in the first paragraph of the complaint as follows (we do not repeat number of township and in other respects abbreviate description): In Laporte county: All that part of the S. 1/2 of the S. E. 1/4, Sec. 3, lying E. of the meander line of the U. S. survey. All that part of the S. E. 1/4, Sec. 19, lying E. of the meander line of U. S. survey. In Starke county: All that part of the S. 1/2 of Sec. 21, lying between the meander line of the U. S. survey on the E. and the old channel of the Kankakee river on the W. All that part of the N. 1/2 of Sec. 21, lying E. of the old channel of the Kankakee river. All that part of the N. E. 1/4 of the N. W. quarter of Sec. 28, lying west of the meander line of the U. S. survey (in both Laporte and Starke counties). All that part of Sec. 10, lying E. of the meander line of the U. S. survey. All that part of Sec. 16, lying east of the meander line of the U. S. survey. All that part of Sec. 20, lying east of the meander line of the U. S. survey. All that part of Sec. 29, lying W. of the meander line of the U. S. survey. All that part of the E. 1/2 of Sec. 30, lying between the meander lines of the U. S. survey. All that part of the N. E. quarter of Sec. 31, lying between the meander lines of the U. S. survey.
The second paragraph describes the real estate in controversy by courses and distances, following what is indicated on the government plat (which plat hereinafter appears in this opinion) as the meander lines of the Kankakee river, and including all the territory between such lines consisting of something over 5,500 acres, and then excepting therefrom Sec. 14, and so much of Sec. 11 as lies within such boundaries, and in Starke county, and excepting also that part of Sec. 16, within such boundaries, and Sec. 15, in Laporte county.
Appellees Pinney and Biddle, hereinafter referred to as P. & B., filed a cross-complaint in four paragraphs. A demurrer filed by appellant to each paragraph of this cross-complaint was sustained as to the second and third paragraphs and overruled as to the first and fourth paragraphs.
The first paragraph of cross-complaint was in the usual form to quiet title to all of Sec. 21, in township 33 N., range 3 W., in Laporte and Starke counties, except the S. E. 1/4 and the S. E. 1/4 of the S. W. 1/4 of said section.
For the reasons hereinafter indicated, it is not necessary that we set out the averments of said fourth paragraph further than to say that it seeks to reform the description of the real estate described in the letters patent issued by appellant to appellees, and to quiet title to the real estate included in the reformed description. A denial to each of the paragraphs of complaint and cross-complaint (by the respective defendants thereto) closed the issues.
Upon the issues thus formed, there was a trial by the court, and a general finding as follows:
“That the plaintiff is the owner in fee simple of all that portion of sections 2, 11, 23, northeast quarter of section 3, northeast quarter section 22, west half northwest quarter section 28, which lies within or between the meander lines of Kankakee river in said township and range, and is entitled to have its title quieted thereto; that the cross-complainants, Pinney and Biddle, are the owners in fee simple and should have their title quieted to all that portion of section 21, in said township and range, north and west of the thread of the Kankakee river, as the same was before the artificial straightening thereof; that as to all the other lands involved in the complaint the plaintiff is not the owner thereof.”
A motion for new trial filed by appellant was overruled, and judgment rendered in accord with the finding.
The errors assigned and relied on for reversal by appellant are the rulings on its demurrer to the fourth paragraph of cross-complaint of appellees P. & B. and the ruling on its motion for new trial.
Numerous questions relating to the admission of evidence are presented by appellant's motion for new trial, but the conclusion which we have reached on that ground of the motion which challenges the sufficiency of the evidence to sustain the decision of the trial court renders unimportant all other questions presented by the appeal, including that of the ruling on the demurrer to the fourth paragraph of P. & B.'s cross-complaint. We therefore go directly to a consideration of the question of the sufficiency of the evidence to sustain the decision of the trial court.
The appellant introduced in evidence the patent from the United States to the state for the lands in controversy, which is as follows:
“The United States of America.
No. 2. To All Whom These Presents shall Come-Greeting: Whereas, by the act of Congress approved September 28th, 1850, entitled ‘An act to enable the state of Arkansas and other states to reclaim the “Swamp Lands” within their limits,’ it is provided that all the ‘swamp and overflowed lands,’ made unfit thereby for cultivation within the state of Indiana, which remained unsold at the passage of said act, shall be granted to said state; and whereas, in pursuance of instructions from the General Land Office of the United States, the several tracts or parcels of land hereinafter described have been selected as ‘swamp and overflowed lands,’ inuring to the said state, under the act aforesaid, being situated in the district of lands subject to sale at Winamac, Indiana, to wit [we abbreviate and change the order of the descriptions]: Also W. 1/2 of S. E. 1/4 of the W. 1/2 N. E. 1/4, the N. E. 1/4 of N. E. 1/4 and the W. 1/2, Sec. 1, the E. 1/2 or lots Nos. 2, 3, and 4, the N. W. 1/4 of the N. E. 1/4, the E. 1/2 of N. E. 1/4 and the E. 1/2 of the S. E. 1/4, Sec. 2. The W. 1/2 of N. W. 1/4, the S. E. 1/4 of the N. W. 1/4 and the S. W. 1/4 or the W. 1/2 of the S. W. 1/4 and lots Nos. 3 and 4 of Sec. 3. The whole of Secs. 4, 5, 6, 7, 8, 9, 12, 13, 17, 18, 24, and 32. The whole of fractional Secs. 10, 11, 15, 20, 21, 22, 23, 28, 29, 30, and 31. The E. 1/2 of the S. W. 1/4 of the S. W. 1/4 the E. 1/2 of the N. W. 1/4 N. W. 1/4 of the N. W. 1/4 and the E. 1/2 of S. W. 1/4, Sec. 19. The S. 1/2 S. W. 1/4, the W. 1/2 S. E. 1/4 and the N. 1/2, Sec. 25. The N. E. 1/4 of the S. W. 1/4 and the N. 1/2, Sec. 26. The N. 1/2 S. E. 1/4 the S. W. 1/4 and the N. 1/2, Sec. 27. The N. 1/2 of the N. E. 1/4 and the W. 1/2, Sec. 38. The S. 1/2 of N. W. 1/4, the N. 1/2 of S. W. 1/4 and the N. W. 1/4 of the S. E. 1/4, Sec. 35. All in Tp. 33 N. R. 3 W., containing in all fifteen thousand and eighty-three and eleven hundredths of an acre, ‘according to the official plats of survey of the said lands returned to the General Land Office by the Surveyor General.’ And for which the Governor of the said state of Indiana did on the eighteenth day of December, one thousand eight hundred and fifty-two, request a patent to be issued to the said state, as required in the aforesaid act: Now, therefore, know ye that the United States of America, in consideration of the premises, and in conformity with the act of Congress aforesaid, have given and granted, and by these presents do give and grant, unto the state of Indiana, in fee simple, subject to the disposal of the Legislature thereof, the tracts of land above described. To have and to hold the same, together with all rights, privileges, immunities, and appurtenances thereto belonging, unto the said state of Indiana, in fee simple and to its assigns forever. In testimony whereof,” etc.
Upon this evidence appellant rested its case.
The appellees Tuesburg Land Company and Northern Trust Company, trustee, hereinafter referred to as T. & N., then introduced in evidence numerous letters patent, 27 in all, issued by the state to the several respective purchasers therein named, by which the state conveyed to such purchasers the marginal lots or surveyed subdivisions of the land outside of and abutting on what is indicated in the government plat as being the meander lines of the Kankakee river.
Patent No. 23440 is as follows:
“The State of Indiana.
No. 23440. $64.87.
Letters Patent.
To All to Whom These Presents shall Come -Greeting: Whereas, George H. Birch has filed, with the secretary of state of the state aforesaid, the certificate of the auditor of state, whereby it appears that full payment has been made according...
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