31 Ind. App. 1 | Ind. Ct. App. | 1903
This case was transferred to this court by the Supreme Court. Appellee commenced this action by
The judge trying the cause, at the request of appellant, found the facts specially, and stated conclusions of law thereon. Appellant excepted to the conclusions of law, thereby admitting, for the purpose of testing the correctness of the conclusions of law, that the facts found were correct.
Upon the subject of the ownership of the land where the fence was built the court found as follows: “That at all times since the construction of said railroad, and during the time it has since continuously operated the same on the east bank of said canal, it has continuously held and used and possessed the ground covered by its tracks and a strip of ground from six to ten feet in width extending from the west of the west rail of her said track, and running parallel therewith through the land described in the plaintiff’s deed, but the right of way line between its said tracks and the water of said canal has not been defined by any fence or enclosure or particular marks defining the same; that the strip of ground so occupied by the defendant and its predecessors in the ownership of said railroad for its tracks and right of way, is included within the boundaries of the land as described in the deed to the plaintiff from Peter Kepler and wife, above referred to; that the said railroad, as laid and constructed along the east line of plaintiff’s land, was so laid that the west end of the railroad ties of its main track was substantially upon the top of the east bank of the canal, and from the time of the construction of said road continuously to a date about seven years ago the water in said canal has always flowed over the bed of the same, and along the east side thereof, next to the track of said railroad, had flowed so that it was within four or five feet of the west end of the said railroad ties; that
The finding also includes facts showing a perfect record title in appellee to the land upon which the fence was built, through various deeds and proceedings in court, and there are no facts found which are so at variance with the facts, which place the title in appellee, as to render the finding invalid and of no effect upon this point. We must, therefore, hold the conclusion of law that appellee is and has been for more than five years last past the owner in fee simple of the land upon which the fence was built, a correct conclusion from the facts stated.
The only question then remaining is, was there evidence to support the finding of facts upon which the trial court based its conclusions of law? The evidence shows an unbroken record title in appellee to the land in dispute. It is not shown how appellant acquired title, except by adverse possession for more than twenty years, and the court had the right to conclude from the evidence that such adverse pos
The judgment of the trial court is affirmed.