28 Ind. App. 319 | Ind. Ct. App. | 1902
The qontroversy involved in this appeal is over the title to a strip of ground ten feet wide and about sixty feet long’ at the intersection of Massachusetts avenue and East street, in the city of Indianapolis. Appellee was plaintiff, and appellants, as defendants, answered separately by denial. Trial by the court, and, upon proper request, the court made a special finding of facts and stated its conclusions of law thereon. Though the conclusions of law were favorable to appellant Weiss, yet he has' appealed. Each of the appellants moved for a new trial, which motions were overruled. The errors assigned bring before us for review the conclusions of law and the overruling of the motions for a new trial. The real point in issue depends upon whether Massachusetts avenue immediately in front of the real estate in controversy is ninety or eighty feet wide. If it is ninety feet wide, then said real estate is a part of the highway, and not a part of the abutting lots. On the contrary, if the avenue is only eighty feet wide, .then said ten-foot strip is not a part of the highway, but a part of the abutting lots. The court found as a fact that the avenue at that point was only eighty feet wide. Massachusetts avenue as originally laid out and improved up to the point where it intersects East street, is ninety feet wide. It is the contention of appellee that said avenue, as extended northeast beyond East street, is only eighty feet wide.
In 1836, one John Wood was the owner of outlot forty-one. Outlot number forty-one was at the intersection of East street .and Massachusetts avenue, and formed the northeast corner of said intersection. Massachusetts avenue was shown on the original town plat, which plat showed said outlot number forty-one, and on which said avenue was marked and designated as eighty feet wide in front of said outlot. November 7, 1836, said Wood made and executed a plat of said outlot, together with other lands, into twenty-five lots, numbered from sixteen to forty, which plat was duly recorded. In this plat Massachusetts avenue, as
The description in the deed to Weiss was intended by
The court -specifically found that said ten-foot strip was not dedicated to the city as a part of the highway; that the same was never accepted by the city as a part of the highway, and that said city never at any time or in any manner or extent possessed, controlled, or used the same as a part of the highway, or for any other purpose. The last finding of the court is as follows: “That the parties have, by agreement, excluded all questions from the issues and trial herein, except the question as to whether said ten-foot strip is a part -of a public highway of the city, or whether the same is a part of said lots, and conveyed as such to said -Weiss, reserving all questions as to other -matters than the title thereto.” Upon the facts so found, the court concluded as a matter of law that said ten-foot -strip was a part of said lots; that it was conveyed to said Weiss as such, and that the title to it should be quieted in him. In view of the facts found, we do not see how the court could have reached any other conclusion.
By excepting to the conclusions of law, appellants admitted, for the purpose of their exceptions, that the facts found are indisputably true. Indiana, etc., R. Co. v. Doremeyer, 20 Ind. App. 605, 67 Am. St. 264; Blair v. Curry, 150 Ind. 99; North British, etc., Co. v. Koontz, 17 Ind. App. 625. The court found as a fact that Massachusetts avenue, opposite lots one and two, was only eighty feet wide; that the city had recognized said fact by improving it to-that width, and had caused to be constructed permanent, cement sidewalks and an asphalt roadway, the width of all of which is only eighty feet. There is an abundance of evi
As construed by the parties in interest, — the successive grantees, and specially the city of Indianapolis, — there can be no doubt but what they have been guided by the original plat, and accepted and recognized the avenue opposite the land in controversy as being eighty feet wide. By a reference to the evidence, we find that the officers of the city recognized the avenue as being only of that width, and for the improvement of the roadway 'and sidewalks assessed lots one and two as abutting property, and as adjoining the original north line of said avenue as shown by the original plat. Such assessment of necessity included the ten-foot
We are clearly of the opinion, in the light of the facts, that the city never accepted a dedication of a ninety-foot roadway in front of this property, and the validity of a dedication depends upon an acceptance. Steinauer v. City of Tell City, 146 Ind. 490. See, also, Booraem v. North Hudson, etc., R. Co., 40 N. J. Eq. 557, 5 Atl. 106.
A dedication of a publjc highway may be accepted in part and relinquished in part. So, if it be conceded for the argument, that Wood dedicated to the public a street ninety feet wide, it does not necessarily follow that the entire width had to be accepted. There may be an acceptance and 'appropriation in part, and not for the whole. A piece of land may be ¿edicated to public use, and yet the public convenience may not require the whole of it. In such event, the part needed may be accepted and appropriated, and the residue, by common consent, be relinquished. See State v. Trask, 6 Vt. 355, 27 Am. Dec. 554; Town of Carrollton v. Jones, 7 La. Ann. 233; In the matter of Public Works, 48 Hun 488, 1 N. Y. Supp. 237.
The case of Bell v. City of Burlington, 68 Iowa 296, 27 N. W. 245, is directly in point. There two proprietors of two adjacent additions to the city together dedicated a strip ninety feet wide for a street. The city used and improved only the east sixty feet, and the purchasers of the lots on the west line of the street occupied, enclosed and improved
In the case of Hamilton v. State, 106 Ind. 361, it was held that, where a public highway, through a given district or neighborhood, or along a particular line, has been maintained for more than twenty years, substantially of a uniform width, less than that at which it was laid out and established, and valuable improvements,' — as fences, etc.,— have been made in good faith on the appearance of things,the law will presume an abandonment of so much of the highway as has been thus occupied.
So in this case, if there was any evidence to show an acceptance of Massachusetts avenue as ninety feet wide, as designated by the Wood plat, — which there is not, — yet, under the rule declared in the Hamilton case, the city of Indianapolis could not now assert any right to the entire ninety feet, in view of the established facts. Upon the
The court finds that the city never accepted any dedication of the strip of land in controversy for highway purposes, although by” the Wood plat Massachusetts avenue was designated as ninety feet wide opposite outlet forty-one, which would include the strip in controversy. It is also found that by the original plat said avenue was designated as eighty feet wide. The evidence shows that the city accepted and improved the avenue to a width of eighty feet.
There is no evidence or finding that the public or any individual ever acquired, for any public use or purpose, any right in or to said ten-foot strip. It follows,- therefore, that the court’s findings upon all material facts are amply supported by the evidence. The rights of the city, and consequently the rights of the public, are not in any manner infringed by the conclusion reached by the trial court.
We see no good reason why a mortgagee cannot maintain a suit in equity to relieve the mortgaged estate, which he has conveyed, from any cloud or embarrassment which might affect his rights under the mortgage, and thus protect' the title which he has conveyed and warranted. The following authorities seem to recognize such right: Polk v. Reynolds, 31 Md. 106; Wofford v. Police Board, etc., 44 Miss. 579.
The court finds as a fact that doubt had arisen, and that a controversy was threatened between appellee and appellant Weiss as to the title to said ten-foot strip of land. Under these facts, appellee had a right to resort to the courts to. have the question determined, to the end that it might protect the title and make good its warranty. Appellant Weiss is certainly not in a position to complain of the result reached, for the judgment of the court settles in him the land in dispute.
Appellant’s motions for a new trial each question the
In our judgment none of the reasons for a new trial are well founded, and the foregoing discussion substantially disposes of all of them adversely to appellants.
Judgment affirmed.