Vanatta v. Waterhouse

• Decision Date: 24 May 1904
• Docket Number: 4,715
• Citation: 71 N.E. 159,33 Ind.App. 516
• Parties: VANATTA ET AL. v. WATERHOUSE ET AL
• Court: Indiana Appellate Court

71 N.E. 159

33 Ind.App. 516

VANATTA ET AL. v. WATERHOUSE ET AL

No. 4,715

Court of Appeals of Indiana

May 24, 1904

Rehearing denied October 12, 1904.

From Superior Court of Allen County; J. H. Aiken, Judge.

Action by Amelia Waterhouse and another against John C. Vanatta and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

R. P Davidson and Allen Boulds, for appellants.

Wilmer Leonard and Elmer Leonard, for appellees.

OPINION

ROBINSON, J.

In 1889 appellees owned certain land in Allen county, described as follows: Commencing at a point on the west line of lot four in Well's Reserve, township thirty north, range twelve east, fifty-six feet south of the northwest corner of the lot; thence south to a point where the west line of lot four intersects the west line of Spy Run avenue; thence northeast along the avenue to a point fifty-six feet south of the north line of lot four; thence to the beginning--being a wedge-shaped piece of land lying west of and adjoining Spy Run avenue. John A. Bossler owned the south half of lot five, lying west of and adjacent to appellees' land. In 1892, appellees desiring to secure sufficient land out of lot five west of the north portion of the wedge-shaped tract to make the same square, so it could be platted, and Bossler desiring to secure the south end of the wedge-shaped tract adjacent to Spy Run avenue, it was agreed between the parties that appellees would convey to Bossler the end of the wedge-shaped tract, and, in consideration thereof, Bossler agreed to convey to appellees a tract lying west of and adjacent to the remaining part of appellees' land. As a further consideration for such transfer, the parties agreed that Bossler would furnish sufficient dirt from his remaining land to fill appellees' lot; that Bossler "further agreed that he would open, establish, and maintain a highway south of along, and adjacent to the south side of said plaintiffs' lot, after said transfer had been made, running from the west line of Spy Run avenue to and intersecting an alley twelve feet wide west of, along, and adjacent to the west line of plaintiff's lot or tract, and also agreed that he would open an alley twelve feet wide west of, along, and adjacent to the west line of plaintiffs' land, the highway to be of equal grade of that of Spy Run avenue, and to be filled up within five years from the date aforesaid by Bossler." In pursuance to this agreement the deeds were made, and were afterwards delivered as concurrent acts. Bossler's deed contained a provision about the furnishing of dirt from his land to fill appellees' lot, and agreed "to maintain a passable highway south of and adjoining grantee's land to intersect Spy Run avenue and to be of equal grade and to be so built up within five years from this date; also lay out and maintain an alley on the west line of grantor's land at least twelve feet in width, both street and alley for public utility, together with all privileges and appurtenances to the same belonging." One of the principal considerations passing for the transfer to appellee was that Bossler would establish a public highway adjacent to the south line of their property, and open an alley twelve feet wide on the west, intersecting such street, which was so understood and intended by all the parties. After the execution of the deeds, Bossler began filling the highway, but never completed it. After the deeds were made, appellees filled the strip of land to the desired height, and have since sold two lots, being the middle portion; still owning a lot on the north end of the property and a lot thirty feet wide on the south end adjacent to the highway. In 1898 Bossler conveyed his adjacent land to appellant Vanatta, reserving a highway for public purposes along the south side and adjacent to appellees' land, and an alley twelve feet wide along the west side of appellees' land. At the time of the exchange of the tracts by Bossler and appellees, it was the understanding and...