Town of Clarksville v. Ohio Hydraulic Mfg. Co.

• Decision Date: 30 April 1914
• Docket Number: No. 8804.,8804.
• Citation: 105 N.E. 67,56 Ind.App. 198
• Parties: TOWN OF CLARKSVILLE v. OHIO HYDRAULIC MFG. CO. et al.
• Court: Indiana Appellate Court

56 Ind.App. 198

105 N.E. 67

TOWN OF CLARKSVILLE

v.OHIO HYDRAULIC MFG. CO. et al.

No. 8804.

Appellate Court of Indiana, Division No. 1.

April 30, 1914.

Appeal from Circuit Court, Clark County; Harry C. Montgomery, Judge.

Action by the Town of Clarksville against the Ohio Hydraulic Manufacturing Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.Laurent A. Douglass and H. W. Phipps, both of Jeffersonville, for appellant. M. Z. Stannard and Jonas G. Howard, Jr., both of Jeffersonville, for appellees.

FELT, J.

Appellant filed an amended complaint in five paragraphs against appellees, in each of which facts were alleged to show that appellant was the owner, or entitled to the use and control, of certain lands, lying between the town of Clarksville, Ind., and the Ohio river, which lands were a part of what was known as “the Clarksville slip.” Each paragraph was answered by general denial and by five paragraphs of affirmative answer, which included pleas of former adjudication, as to each paragraph and the statute of limitations. A demurrer for want of facts was overruled to each paragraph of affirmative answer, and issues were joined thereon by reply in general denial. Trial by court, with a finding of facts made upon due request, on which conclusions of law were stated in favor of appellees. Appellant made a motion for a new trial on various grounds, which was overruled. Appellant has assigned eighteen separate specifications of error. Under the heading, “Propositions,” in its brief, appellant states 27 abstract propositions of law without in any way indicating the particular error to which any one of said propositions is applicable. However, by a liberal construction of appellant's briefs aided by the briefs of appellees, we are able to determine from all the briefs the question of former adjudication.

[1] As to all other questions, appellant's briefs do not comply with rule 22 (55 N. E. v), which requires the briefs to contain, under separate headings of each error relied on, separately numbered propositions or points, stated concisely and without argument or elaboration, together with authorities relied on in support of them. The rule is plain and unambiguous and is intended to promote the disposition of the business of the court, by taking up each error relied on, separately, and stating and numbering such propositions or points, thereunder as counsel may consider advisable and helpful, with any authorities deemed in point upon the propositions or points so stated. Wolf v. Atkin, 104 N. E. 308;Curry, Gdn., v. City of Evansville, 104 N. E. 978, and cases cited.

This case is interesting from an historical point of view, but we will confine our statements to the facts necessary to an understanding of the legal question to be determined. Clarksville, Ind., comprises 1,000 acres of land which is part of 150,000 acres granted by the state of Virginia in 1783 to George Rogers Clark and certain officers and soldiers. Between the platted plots and the Ohio river there was a strip of unplatted land, containing about 33 acres, known as the “Mill slip” or “Clarksville slip.” Certain trustees were known in the grant, who in March, 1803, upon application of George Rogers Clark, granted to William Clark certain rights and privileges of the “Mill slip” for opening a canal, and the erection of mills, wharves, and other structures of public utility for which he was to pay certain tolls. In 1810, the territorial Legislature passed an act declaring that certain named grantees or assignees of said Clark should be taken and held to be the legal and equitable proprietors of said “Mill slip” subject to the conditions under which it was granted. After numerous transfers, that part of the “slip” involved in this suit was transferred to appellee company, in 1870. In 1873 the owners executed to Lewis Smyser a lease for 99 years of a portion of said “Mill slip.” The appellees, Richard O. and Jesse M. Gathright, afterwards acquired said leasehold estate. About 1881, there was a proceeding before the board of trustees of the town of Clarksville by which a resolution was passed releasing to the owners of said leasehold estate all the claims of said town and the board of trustees thereof to any tolls, percentage, royalty, or other claims upon arising out of the milling, water power, canal, or hydraulic privileges aforesaid, present and prospective. The property in controversy was assessed by said town to appellee company for taxes, and it paid the taxes thereon. The court found that the Ohio Falls Hydraulic Manufacturing Company is a corporation of the state of Indiana, and that appellees Richard O. Gathright and Jesse M. Gathright are lessees of said company; that in 1890 appellant instituted suit in the Clark circuit court against appellee company and the owner of said leasehold interest to collect certain tolls alleged to be due said town by reason of the provisions of the grant of said “Mill slip” as aforesaid, which suit was known as cause No. 2655; that in said suit appellee company filed its cross-complaint against appellant in which it averred that it was the owner in fee simple of said real estate, the same being the identical property involved in this suit; that issues were duly joined on the complaint and on said cross-complaint, and thereafter on March 17, 1896, judgment was duly rendered in said cause against appellant on its complaint and in favor of appellee company on its cross-complaint, quieting the title to said real estate; that on December 13, 1900, appellee company filed a complaint against appellant, same being cause No. 5854 in said court, in which complaint appellee asked damages from appellant for the removal of soil, stone, and gravel from a part of said property and for a perpetual injunction, enjoining appellant from entering on said property, and removing soil, gravel, stone, and other material therefrom; that it was alleged in said complaint that appellee company was then and for more than 20 years prior thereto had been the owner in fee simple and in the possession of said real estate, which was the identical real estate...