Trout v. Summit Lawn Cemetery Ass'n, Inc.

• Decision Date: 26 June 1974
• Docket Number: No. 1--973A160,1--973A160
• Citation: 160 Ind.App. 552,312 N.E.2d 498
• Parties: Virgil H. TROUT and Helen Trout, Appellants, v. SUMMIT LAWN CEMETERY ASSOCIATION, INC., Appellee.
• Court: Indiana Appellate Court

Page 498

312 N.E.2d 498

160 Ind.App. 552

Virgil H. TROUT and Helen Trout, Appellants, v. SUMMIT LAWN CEMETERY ASSOCIATION, INC., Appellee.

No. 1--973A160.

Court of Appeals of Indiana, First District.

June 26, 1974.

Beecher & Kite by Samuel E. Beecher, Jr., Terre Haute, for appellants.

Thomas & Thomas by Amos P. Thomas, Brazil, for appellee.

LOWDERMILK, Judge.

Plaintiff-appellee is the owner of a certain cemetery in Clay County, Indiana, which has existed many years prior to the plaintiff-appellee coming into possession and ownership of the same.

Plaintiff-appellee brought its action to quiet title to a strip of land which will be hereinafter referred to as the 'road,' which ran from a public highway through and across appellee's cemetery grounds to a home which had been abandoned for a number of years and is now owned and occupied by the defendants-appellants, Trout. Trout had purchased the house and parcel of land from the plaintiff-appellee on November 13, 1961. At the time of the purchase the parties also executed an easement from the appellee to appellants Trout to a continuous strip of real estate leading from the Water Works Road on the east back to the property sold to Trout by the cemetery. This easement allowed Trout to construct a road over the 16 foot strip at his convenience but the cemetery was under no obligation to build any road over said strip. Also included in the easement was a privilege granted to Trout to use the pre-existing road that is the subject of this action. The easement further contained an agreement by Trout as part of the consideration for the easement to secure a permanent means of ingress and egress to his property over and across lands of parties other than the cemetery. The easement further contained an agreement wherein Trout agreed to surrender possession of the easement strip and the described roadway on or before May 1, 1971, to the cemetery.

On November 2, 1961, Trout had secured an easement from Mr. and Mrs. Kumpf for ingress and egress over Kumpfs' property to the property purchased by Trout from the cemetery.

Plaintiff-appellee initiated this action to quiet the title of the strip and road covered in the easement granted by the cemetery to Trout. Trial was had to the court, with the court entering judgment quieting title to the aforesaid land in favor of plaintiff-appellee, as prayed in its complaint. Trout timely filed a motion to correct errors which was by the court overruled.

The first issue raised by Trout under the motion to correct errors is that a new trial should have been granted by the trial court as the result of newly discovered evidence in the form of a survey of the easement over the Kumpf property. This survey was not made until after the trial court had entered its judgment. During the trial, however, Mr. Trout testified that he believed there was an error in the description of the land covered by the Kumpf easement. Trout further testified that he and a neighbor had stepped off this ground and had determined that there was an apparent error in the description of approximately 13 feet. Trout admitted that he had not seen fit to have a survey made of this property prior to trial.

Trout attached to the motion to correct errors an exhibit, the same being a land survey map which had been made after the trial, stating that it would be introduced into evidence through the testimony of the surveyor to establish that there was no easement conveyed in the documents.

Trout based the request for a new trial on Ind. Rules of Procedure, Trial Rule 59(A)(6), which governs the granting of a new trial on the basis of newly discovered evidence. This court has recently discussed the test to be used when a new trial is requested on the basis of newly discovered evidence as follows:

'Kelly v. Bunch (1972), Ind.App., 287 N.E.2d 586, summarizes a litigant's burden in seeking a new trial because of newly discovered evidence:

'A motion for a new trial based on newly discovered evidence should be received with great caution and the alleged evidence should be carefully scrutinized. The newly discovered evidence must be material, and must be more than just cumulative or impeaching. The party seeking a new trial...