Town of Poseyville v. Gatewood

• Decision Date: 14 December 1916
• Docket Number: No. 9591.,9591.
• Citation: 114 N.E. 483,65 Ind.App. 50
• Parties: TOWN OF POSEYVILLE v. GATEWOOD.
• Court: Indiana Appellate Court

65 Ind.App. 50

114 N.E. 483

TOWN OF POSEYVILLE

v.GATEWOOD.^*

No. 9591.

Appellate Court of Indiana, Division No. 2.

Dec. 14, 1916.

Appeal from Circuit Court, Posey County; Herdis F. Clements, Judge.

Suit for injunction by the Town of Poseyville against Stephen Gatewood. Judgment for the defendant, and plaintiff appeals. Affirmed.

James Kilroy, of Poseyville, and Lucius C. Embree and Morton C. Embree, both of Princeton, for appellant. Jesse Wade and F. P. Leonard, both of Mt. Vernon, for appellee.

IBACH, J.

This is a suit for injunction and involves the right of appellant to maintain an open ditch or drain across a city lot, the property of appellee. There was a trial by the court, a general finding, and judgment for appellee.

Appellant's motion for a new trial was overruled, and such ruling is assigned as error and relied on for reversal. The grounds of the motion not waived relate to the sufficiency of the evidence.

The cause was submitted to the trial court upon three issues of fact, two of which appellant, in effect, admits it was unable to establish by the evidence. The remaining issue is that of dedication. The facts disclosed by the evidence on this branch of the case are, in brief, as follows: Appellant is an incorporated town. The lot in question is located in such town and was purchased by appellee about two years prior to the obstruction of the drain upon which this suit is predicated. Several years prior to such purchase, appellant caused a drain (the dimensions of which are not disclosed by the evidence) across the lot near the center. The lot is about 200 feet long. Since its original construction, appellant has enlarged the drain until it was five feet deep and eight feet wide where it passed through appellee's lot. From time to time the drain was cleaned out by the employés of appellant. All of these acts were done with the knowledge and, so far as the record shows, without objection on the part of appellee's grantors, the then owners of the land. Since the construction of the drain, other public and private drains have been connected to it, and it has been used, ever since its original construction, to drain a considerable portion of the town. The obstruction placed by appellee causes the water to back up in the sewer and causes water to back up on the property of private owners above the obstruction. Appellee purchased the lot with knowledge of the drain and its surroundings.

Appellant contends that the foregoing facts are uncontradicted, and that the use by the public of the drain with the knowledge and acquiescence of appellee and his immediate and remote grantors for a period of almost 20 years, with knowledge of the character and extent of such use and without objection, conclusively established an implied dedication.

We therefore proceed to consider whether or not the evidence in this case forces a conclusion different from that reached by the trial court.

[1] An “implied dedication” is one arising by operation of law from the acts of the owner. The intention of the owner to set apart his lands for the use of the public is the foundation and vital element of every dedication. This intention will govern in determining whether or not a dedication exists, in so far as the owner of the soil is concerned. The intention must clearly appear, and the acts and declarations of the owner relied on to establish it must be clear, convincing, and unequivocal. As was said in the case of San Francisco v. Grote, 120 Cal. 62, 52 Pac. 128, 41 L. R. A. 335, 65 Am. St. Rep. 155:

“It is not a trivial thing to take another's land [without compensation] and for this reason the courts will not lightly declare a dedication to public use. It is elementary law that an intention to dedicate upon the part of the owner must be plainly manifest.”

But the intent which the law regards is that which the open acts of the owner indicate, and not a secret intent. Where the acts and conduct of the landowner are such as fairly and naturally lead to the conclusion that he intended to dedicate the land to the public use, and others have in good faith acted upon his open acts and conduct, he will not be permitted to aver that there was no dedication; but the law will conclusively infer that he intended what his acts and conduct indicated. City of Indianapolis v. Kingsbury (1884) 101 Ind. 211, 213, 51 Am. Rep. 749;City of Columbus...