Steele v. Fowler

• Decision Date: 08 May 1942
• Docket Number: 16649.
• Citation: 41 N.E.2d 678,111 Ind.App. 364
• Parties: STEELE v. FOWLER, Mayor, et al.
• Court: Indiana Appellate Court

41 N.E.2d 678

111 Ind.App. 364

STEELE v. FOWLER, Mayor, et al.

No. 16649.

Appellate Court of Indiana, in Banc.

May 8, 1942

[Copyrighted Material Omitted]

Smith & Wilson, of Princeton, for appellant.

S L. Vandeveer and Earl W. Kintner, both of Princeton, for appellees.

BEDWELL Presiding Judge.

The appellant, Clifford Steele, filed an action in the court below to enjoin the appellees from entering upon a portion of Chestnut street in the city of Princeton, Indiana, and removing or molesting a certain concrete wall and the concrete wings attached thereto that had been constructed therein by appellant's father and maintained therein by appellant and his father.

The trial court at the request of the parties made a special finding of facts and stated conclusions of law thereon. These were favorable to appellees.

Appellant seeks to predicate error as arising from his exceptions to the conclusions of law and the overruling of his motion for a new trial. His first contention is that his exceptions to the conclusions of law should have been sustained because the special finding of facts required the trial court to draw the legal conclusion that the appellees were estopped from interfering with or molesting the particular structures.

This special finding showed that on the 28th day of March, 1814 one Robert M. Evans, as agent for Gibson County, Indiana, platted the original plan of the town, which is now the city of Princeton, Indiana. This plan or plat was recorded on such date in the recorder's office of such county, and among the lots so platted was one numbered as seventy-four (74). Streets were shown upon such plan or plat of a uniform width of sixty (60) feet and one of such streets ran east and west and abutted upon the north line of Lot 74. This street is now known as Chestnut street, and it is intersected by two north and south streets shown on such plat which are now known as Prince street and Main street.

On the 1st day of March, 1904, Nellie C. Steele, the mother of appellant, became the owner by deed of conveyance of the east one-half (1/2) of the north half of such Lot 74. At that time she was the wife of Charles A. Steele, the father of appellant, and when title was obtained to such portion of such lot Charles A. Steele entered into possession of the real estate and used it as a place of business for selling at retail building materials, tile, feed, and coal. On April 3, 1933, Charles A. Steele and Nellie C. Steele conveyed such portion of such lot to appellant and he has been the owner thereof since such time.

For a great number of years a steam railway track has been constructed along that portion of Chestnut street that lies north of Lot 74, and about twenty-five (25) years ago a switch track connected thereto was constructed along or near the north property line of such Lot 74. After such lot was conveyed to Nellie C. Steele, her husband constructed a wooden retaining wall along the north side of such switch track about ten (10) feet north of the north property line of Lot 74 and within the lines of Chestnut street. Attached to this retaining wall and extending north were wings which with the retaining wall formed bins into which coal, sand, gravel, and building materials were unloaded from the railway cars upon such switch track. This wooden structure decayed, and about ten (10) years ago Charles A. Steele replaced the wooden retaining wall and wings with a concrete structure in the same place and used for the same purpose.

For a number of years the north part of Chestnut street has been used by travelers, but because of the railway tracks and the structures heretofore described the south portion could not be used by wheeled vehicles. Before the commencement of the action the city, by its officers, had served written notice upon appellant and Charles A. Steele to remove the side walls and wings attached to the concrete retaining wall so that particular portion of the street could be improved.

The trial court found as a fact that the father of appellant, Charles A. Steele, was the owner of the concrete retaining wall and the concrete side walls and wings that had been constructed by him in such street. The trial court does not find as a fact that the father of appellant placed such structures in the public street because the boundaries thereof were unknown, or through any mistake as to the location of the north property line of Lot 74, nor does the trial court find as a fact that any representations were made to appellant or his father by city officials which induced either of them to locate, construct or maintain the particular structures. While appellant contends that there was evidence from which the trial court might have found such facts, or at least some of them, in considering exceptions to conclusions of law, we consider solely the facts as found by the trial court.

On appeal, all facts not embraced in the special finding will be regarded as not proved by the party having the burden of the issue, and the failure to find a fact essential to recovery is equivalent to a finding against the party having the burden of proving the same. Universal Ins. Co. of Indiana v. Glover, 1935, 100 Ind.App. 327, 195 N.E. 583. Clearly the burden of the issue as to these matters was upon the appellant.

Title to property dedicated or devoted to a public use cannot be acquired by prescription or adverse possession as against the state or a county or, according to the weight of authority, a municipal corporation. 2 C.J.S., Adverse Possession, § 14, p. 528.

It has long been the established rule in this state that title by prescription cannot be acquired by adverse possession of land that has been platted and dedicated to the public for streets and alleys. Such a dedication is to the public and not to the municipality. The latter holds as trustee and cannot surrender the grant, except as the statute provides, nor lose the same by the negligence or laches of its officers. Sims v. City of Frankfort, 1881, 79 Ind. 446; Cheek v. City of Aurora, 1883, 92 Ind. 107; Wolfe v. Town of Sullivan, 1893, 133 Ind. 331, 32 N.E. 1017; Hall v. Breyfogle, 1904, 162 Ind. 494, 70 N.E. 883; City of Princeton v. Hanna, 1916, 187 Ind. 582, 113 N.E. 999, 120 N.E. 598; Murray v. City of Huntingburg, 1918, 187 Ind. 504, 119 N.E. 209; Swaim v. City of Indianapolis, 1930, 202 Ind. 233, 171 N.E. 871, 173 N.E. 287; House-Wives League, Inc., v. City of Indianapolis, 1933, 204 Ind. 685, 185 N.E. 511; McRoberts v. Vogel, 1935, 100 Ind.App. 303, 195 N.E. 417.

The making of a plat of a town upon which streets and alleys are noted as such, and the recording of such plat and the sale of lots as designated thereon, operates as an irrevocable dedication to the public of all the streets and alleys that are marked on such plat as far as purchasers of lots are concerned. Town of Woodruff Place v. Raschig, 1897, 147 Ind. 517, 46 N.E. 990; Wolfe v. Town of Sullivan, supra; Hall v. Breyfogle, supra.

The acts of proprietors in recognizing an unauthorized and invalid plat, recorded upon the proper public record, and selling lots or blocks in reference thereto and as marked thereon, is an adoption of such plat so far as to constitute a dedication to the public of streets and alleys indicated thereon, which is effectual as to lot purchasers. Hall v. Breyfogle, 1904, 162 Ind. 494, pt. 2 on page 500 and cases cited, 70 N.E. 883.

The failure of a municipal corporation to open and improve part of a new street does not operate as a rejection of the part not opened or improved. Sims v. City of Frankfort, supra. A material obstruction to a public street per se is a public nuisance and as against the author may be abated at any time. City of Valparaiso v. Bozarth, 1899, 153 Ind. 536, 55 N.E. 439, 47 L.R.A. 487; State v. Berdetta, 1880, 73 Ind. 185, 38 Am.Rep. 117. In the case of House-Wives League, Inc. v. City of Indianapolis, supra [204 Ind. 685, 185 N.E. 514], the Supreme Court says: "Neither title, nor any other interest, in a street can be gained from the fact that for more than 50 years a street or a part thereof has been devoted to a purpose other than for public travel."

Appellate admits the force of these well established principles of law, but contends that the evidence was sufficient to create an equitable estoppel or estoppel in pais that would prevent the appellees from interfering with or molesting the particular structures. Appellant makes this contention under its claimed error in the conclusions of law, and as we have heretofore pointed out, this court on appeal cannot consider the evidence in determining whether the trial court erred in any of its conclusions of law. No facts...