Switzer v. Armantrout

• Citation: 19 N.E.2d 858,106 Ind.App. 468
• Decision Date: 20 March 1939
• Docket Number: 16075.
• Parties: SWITZER et al. v. ARMANTROUT.
• Court: Indiana Appellate Court

19 N.E.2d 858

106 Ind.App. 468

SWITZER et al. v. ARMANTROUT.

No. 16075.

Appellate Court of Indiana, in Banc.

March 20, 1939

Roscoe D. Wheat and James W. Grimes, both of Portland, for appellants.

Moran & Abromson, of Portland, for appellee.

LAYMON Judge.

Appellee as plaintiff below, instituted this action by a complaint in three paragraphs to quiet her title to a certain easement being a private roadway, located over and upon certain lands of appellants situated in Jay county, Indiana. The relief demanded by the complaint was that plaintiff's title to the easement be quieted in her, that defendants be enjoined from obstructing said roadway, that defendants be ordered to remove the obstructions which had been placed upon said roadway, and that plaintiff be granted all other proper relief. Appellants unsuccessfully demurred to the third paragraph of complaint for insufficient facts and thereafter filed an answer in general denial. They also filed a cross-complaint to quiet their title to the lands involved to which appellee answered in general denial. The issues thus joined were submitted to the court for trial, resulting in a finding and judgment that appellee's title to the easement over the lands of the appellants be quieted in her and forever put at rest; that appellants be enjoined from obstructing the roadway and from interfering with appellee's right to enjoy the free use thereof; that appellee erect and maintain and operate a suitable farm gate at the east end of the roadway; and that said farm gate be kept closed by appellee.

Appellants moved for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence and that the decision of the court is contrary to law. This motion was overruled. Appellants have assigned as errors for reversal the action of the trial court in overruling their demurrer to the third paragraph of complaint and the overruling of their motion for a new trial.

It appears from the evidence that the roadway sought to be established involves the W. 1/2 of Sec. 1, Twp. 24 N., R. 14 E., in Jay county, Indiana; that on December 20, 1851, Philip Macklin, Sr., became the owner of the N. 1/2 of the S.W. 1/4 of said Sec. 1; that George W. Macklin, his brother, became the owner of the S. 1/2 of the N.W. 1/4 of said Sec. 1; that Philip Macklin, Sr., died testate, devising his real estate to his children, who, subsequent to the final administration of his estate, in an agreed judicial partition of the real estate in the year 1899, set off in severalty (1) to Maria A Kraner the W. 1/2 of the N.E. 1/4 of the S.W. 1/4 of said Sec. 1, containing 20 acres, which afterwards became the real estate of appellee; (2) to Adam Houser, et al., the E. 1/2 of the N.E. 1/4 of the S.W. 1/4 of said Sec. 1, which afterwards became the real estate of appellant Murlie Switzer; that appellants are the owners of the E. 1/2 of the N.W. 1/4 of said Sec. 1, excepting 20 acres off the north end thereof; that there is a public highway extending along the east side of appellants' lands, running north and south on the half section line; that the private roadway in question is approximately 16 feet in width, includes a portion of the land on both sides of the quarter section line and extends from the northeast corner of appellee's land across and over the lands of appellants, terminating at or near the public highway to the east; that this roadway is the only means of ingress to and egress from appellee's 20 acre tract; that it existed and was used during the period of ownership of the land by the Macklin brothers, forming the boundary where their lands joined and extending approximately 8 feet over each tract; that, in erecting fences upon the lands involved, the owners have recognized the existence and use of the roadway; that for more than 40 years the roadway has been used by the adjacent land owners; that for more than 20 years prior to the commencement of this action, appellee and her grantors have continuously and uninterruptedly used the right of way in dispute as a means of ingress and egress to and from the land now owned by appellee; that the right to the use of the roadway in question was never disputed, nor challenged, until after appellants became the owners of the land over which the roadway extended, and then, not until a short time before the beginning of the present litigation; that the use of said private roadway has been unobstructed during such period, except in October of 1934, when appellants constructed a fence along the east side of their land, leaving an opening 16 feet in width between the two end posts and then closing this entrance by placing two poles across it; and that on the day before this action was instituted appellants erected a gate and padlocked it.

Appellee claims a right of way acquired by prescription over the lands of appellants and insists that upon this theory there is sufficient evidence to sustain the finding of the trial court. To the contrary appellants contend that no right to the roadway in question exists by prescription, because its use was merely permissive, or at most exercised under a mere license, and cannot ripen into an easement, no matter how long it may continue. Appellants are correct in their statement that a use which is merely permissive, or exercised under a mere license, cannot ripen into an easement, but whether a use is merely permissive or exercised under a mere license, or whether it be adverse under a claim of right is, in the instant case, a question of fact, and to hold that appellants are correct in their contention would require this court to weigh the evidence, which we are not permitted to do. Appellants are in error in asserting that the evidence is not in conflict and that the evidence does not show either an easement or a prescriptive right of way.

The testimony of a number of witnesses tends strongly to sustain the proposition that the roadway in question had been in existence and used for more than 40 years; that appellee and her grantors continuously and uninterruptedly for more than 20 years used the right of way in controversy as a means of ingress and egress to and from the land now...