88 Ind. 563 | Ind. | 1883
— This suit was commenced by the appellee against the appellants, in the Cass Circuit Court, to quiet the title to certain real estate, particularly described, within the limits of the city of Logansport, in Cass county, and to obtain an injunction. The cause was put at issue and tried by a jury, and a verdict was returned for the appellants, the defendants below. On the appellee’s motion a new trial was granted, with leave to the parties to amend their pleadings, and on his further motion the venue of the action was changed to the court below.
In this latter court the appellee filed an amended complaint in three paragraphs, making new parties defendants. Answers and replies were filed by the parties respectively, and the cause being at issue was again tried by a jury, and a general verdict was returned for the appellee, “ and that his title to the real estate, described in his complaint, be quieted.” With their general verdict the jury also returned into court their special findings on particular questions of fact submitted to them by the parties under the direction of the court. The appellant, the City of Logansport, separately moved the court for a judgment in its favor, on the special findings of the jury, notwith
In this court numerous errors have been assigned jointly by all the appellants and separately by the appellant, the City of Logansport. We deem it unnecessary to set out in this connection an abbreviated statement even of these alleged errors, but such of them as may be considered in this opinion we will notice at the proper time.
¥e will first give a summary of the material facts of this case as we gather the same from the record. On the 3d day of September, 1828, Chauncey Carter caused the original plat of the town, now city, of Logansport to be recorded. On such plat, among other streets, there was designated a street known as Fifth street, thirty-three feet wide. On the 3d day of August, 1833, John Tipton laid off, platted and recorded his first addition to the town, now city, of Logansport, adjoining on the east Chauncey Carter’s original plat of such town. In his recorded plat John Tipton laid off on the west side thereof forty-three feet, abutting upon and to be added to Fifth street, in Carter’s original plat, and described in Tipton’s plat as Fifth street, seventy-six feet wide. Between the years 1828 and 1835 Chauncey Carter and John Tipton sold and conveyed all the lots abutting on Fifth street, in the town, now city, of Logansport, to different parties with reference to such street, which was recognized,'used and travelled as one of the streets of such town, and many of the purchasers of such lots had erected dwellings thereon and partially!improved the same prior to the first day of June, 1835.
In the year 1835 the State of Indiana located and after-
In the year 1839 the Wabash and Erie Canal was so far completed over Fifth street, the land in controversy, as to admit of boats passing over it for the purposes of navigation. On the 31st day of July, 1847, the State of Indiana conveyed such caual to the board of trustees of the Wabash and Erie Canal. From the time the State of Indiana took possession •of Fifth street as aforesaid, until the conveyance of the canal as aforesaid to such board of trustees, the State continued in the possession of such street. From the time of such conveyance of the canal by the State, the board of trustees of the Wabash and Erie Canal were in possession of such canal, until the sale and conveyance thereof, on the 26th day of March, 1876, to William Fleming. This sale and conveyance of the canal were made to William Fleming, under and in pursuance of a decree of the Circuit Court of the United States for the dis
On the 26th day of April, 1876, William Fleming conveyed to the appellee Elbert H. Shirk a section or part of the Wabash and Erie Canal, extending from a point at or near Lagro, in Wabash county, to the city of Lafayette, in Tippecanoe ■county, Indiana, and including the part of such canal constructed as aforesaid on Fifth street, in the town, now city, of Logansport. Since the date of his conveyance from Fleming, ■the appellee has been in the possession of the part of such «canal described in such deed, exercising acts of ownership «over the same, collecting rents for water-power and claiming title thereto.
In the year 1875 the Wabash and Erie Canal was abandoned as a canal; and Fifth street, in the town, then city, of Logansport, was no longer needed or used for canal purposes. The water was taken out of the canal, where it ran' through Fifth .■street, and the street or canal had been partially filled up. Fifth street was then in the center of the city of Logansport. The appellee was claiming Fifth street, whore it had been ■occupied by the Wabash and Erie Canal, as his private property, and was seeking to devote the same to his private purposes. On the other hand, the city of Logansport and the owners of lots abutting on Fifth street, the defendants below and the appellants here, claimed and claim that when the ■street was abandoned as a canal and was no longer needed, -occupied or used for canal purposes, the original easement of ■the town or city of Logansport, -of the owners of the abutting lots and of the general public, in and to the land within the ■limits of Fifth street, at once attached and revived, and the same became, as it had been before the location and construction of the canal thereon, a public street or highway within such town or city.
Upon the facts of this case, the substance of which we have given, it seems to us that the following questions are presented for decision:
2. Conceding that the State of Indiana, by Such acts of its. commissioners, acquired a fee-simple title or estate in and to-such strip of land, was the original easement of the public; then, and before that time, existing thereon as a public street, in the town of Logansport, absolutely destroyed or extinguished by the State’s acquisition of such title or estate therein ? Or, did such original easement of the public in such strip of land remain in abeyance or temporary suspension merely, for such period of time as the land was occupied and used for an exclusive purpose, inconsistent with the exercise of such public easement thereon, and no longer? And when, in 1875, the Wabash and Erie Canal was abandoned as a canal, and Fifth street ceased to be occupied or used for the exclusive purposes of a canal, did the original easement of the public in such street, at once revive and attach to the strip of land constituting the street, as an active and existing estate in the; land, which the owner of the fee therein, whoever he might be, could neither obstruct nor destroy?
1. The first of these questions can not now be regarded as an open question, in this court, as the rule of stare deeisis requires us to adhere to the former decisions of the court, wherein substantially the same question was considered and determined. Water Works Co. v. Burkhart, 41 Ind, 364; Nelson v. Fleming, 56 Ind. 310; Cromie v. Board, etc., 71 Ind. 208. In each of the cases cited it was held upon the the facts of the case, that the State of Indiana acquired a fee-simple estate, and not a mere easement, in the lands taken possession of, occupied and used by the State’s commissioners, in the construction of the Wabash and Erie Canal. We ac
2. But, while we acquiesce in the doctrine of Water Works Co. v. Burkhart, supra, and of the cases which follow it, as decisive of the question first above stated, we are not inclined to extend that doctrine beyond the single point decided, namely: that the State acquired a fee-simple estate, and not a mere easement, in the lands occupied and used by it in the construction of the Wabash and Erie Canal. Certainly, the rule of stare deeisis does not require us to hold, in the case at bar, that the original easement of the public in the strip of land, dedicated as a public street by Chauncey Carter and John Tipton, under the name of Fifth street, in the recorded plats of the town of Logansport, was absolutely destroyed or extinguished by the State’s acquisition of the fee-simple title or estate in and to such strip of land. Upon the execution and record of their respective plats the public acquired an easement only in the strip of land seventy-six feet wide, designated as Fifth street on such plats, for such use as the public might lawfully make of such a street; while the fee-simple estate in such strip of land remained in the platting proprietors, and passed to their respective grantees of the lots abutting on such Fifth street. Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Terre Haute, etc., R. R. Co. v. Scott, 74 Ind. 29; Ross v. Thompson, 78 Ind. 90; Sims v. City of Frankfort, 79 Ind. 446.
We are of the opinion that Fifth street remained a public
In Common Council of Indianapolis v. Croas, 7 Ind. 9, it was held by this court that the laying out of an addition to a town, recording the plat and selling lots with reference to the adjoining streets and alleys, gave to the proprietors of those lots a private right, distinct from the claim of the public, which •even the Legislature could not take away, unless to appropriate to a public use. The doctrine of this case has been recognized and approved in other decisions of this court. Haynes v. Thomas, 7 Ind. 38; City of Logansport v. Dunn, 8 Ind. 378; Tate v. Ohio, etc., R. R. Co., 7 Ind. 479. Conceding that, in this case, there was an appropriation of Fifth street, -by the State of Indiana, for a public use in the construction of the Wabash and Erie Canal, in and through such street; yet the record shows, as we have seen, that in 1875 the canal was abandoned as a canal, and the public use of the street, for the purpose, of the appropriation, ceased .and terminated.
Upon the facts of the case now before us we are of opinion that when the Wabash and Erie Canal was abandoned as a ■canal, and Fifth street was no longer occupied or used by or ■for such canal, the original easement of the public, and the private rights of the abutting lot owners,- who are parties to this suit, at once revived and became effective in and over such street; and that the appellee, conceding him to be the •owner of the fee ■ in such street, is not entitled to have his title therein quieted as against, the claims or interests of the ¡appellants in such street.
It follows that the general verdict of the jury was not, as we think, sustained by sufficient evidence, and was contrary to law; and that, for these causes, the motions for a new trial •ought to have been sustained. Many other questions have
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motions for a new trial, and for further proceedings not inconsistent with this opinion.