Donner v. Griffith

71 Ind. App. 693 | Ind. Ct. App. | 1919

Datjsman, C. J.

— (1) The strip of ground in controversy extends east and west through, lots 28 and 29. Appellee owns a tract abutting on the south line of said strip. Appellant owns a tract abutting on the north line of said strip and also owns the fee in the strip. In the fourth paragraph of complaint it is alleged in substance: “That on October 20,. 1877, George P. Bissell as administrator or trustee was in possession of, and had power to sell, said lots; that on said day he conveyed by deed to Keller & Brock-man all that part of said lots situated on the north side of said strip, and as a part of said transaction and by the same deed, he conveyed to them a right of way over said strip so long as the real estate in said deed conveyed should be used for manufacturing purposes; that thereafter Bissell conveyed to Kerr, appellee’s remote grantor, all that part of lot 29 and a portion of lot 28, situated south of, and abutting on, said strip; that in consideration of the purchase of said land by Kerr, and for the purpose of inducing Kerr to make the purchase, Bissell promised and agreed that said strip, which was then in use as a driveway, would b.e reserved and kept open as and for a driveway or alley • for the use and benefit • of the owners of the real estate on either.side thereof.”

1. The only objection to said fourth, paragraph of complaint is directed against the averment concerning the parol agreement. . This objection is on the ground that said averment constitutes an attempt to vary or contradict the terms of the deed. The theory of said paragraph is that Kerr acquired from Bissell an irrevocable license to use said strip as a right' of way ’which became an easement appurtenant to the real estate acquired by the former. The purpose of said averment is to reveal the origin of the alleged easement and not to vary the terms of the deed. Moreover, the finding of facts and the conclusions of law disclose unmistakably that the entire controversy was decided on the first paragraph of complaint, which is on the theory that the strip in dispute became and is a public highway by user. Therefore, appellant was not harmed by the ruling on that demurrer. Young v. Berger (1892), 132 Ind. 530, 32 N. E. 318; Olds v. Moderwell (1882), 87 Ind. 582; Barnett v. Gluting (1891), 3 Ind. App. 415, 29 N. E. 154, 927; §407 Burns 1914, §398 R. S. 1881.

2. (2) The second paragraph of answer sets out appellee’s record title to the real estate abutting on the south fine of said strip. It is averred therein that in every conveyance in this chain of title, from Bissell down to appellee, the strip is designated as the north boundary line and characterized as a private alley, but that no part of the strip has ever- been conveyed to appellee. The theory of ■ this pleading is that by reason of the recitals in said conveyances appellee is estopped to claim that the strip is a public alley. But appellee’s cause of action is not based on the deeds or any of them. Therefore, the rule for which appellant contends is not applicable. Simpson v. Pearson (1869), 31 Ind. 1, 99 Am. Dec. 577; McKinney v. Lanning (1894), 139 Ind. 170, 38 N. E. 601.

3. (3) By the special finding and conclusions of law it clearly appears that the trial court based its decision exclusively on the ground that said strip became a public highway by user. In some of the earlier cases the Supreme Court expressed a doubt as to whether a highway may be established in this manner within the limits of a town or city. Tucker v. Conrad (1885), 103 Ind. 349, 2 N. E. 803; Shellhouse v. State (1887), 110 Ind. 509, 11 N. E. 484. But it is now settled that the doctrine of user is applicable within, as well as without, towns and cities. Pittsburgh, etc., R. Co. v. Town of Crown Point (1898), 150 Ind. 536, 50 N. E. 741; German Bank v. Brose (1903), 32 Ind. App. 77, 69 N. E. 300; Town of Marion v. Skillman (1891), 127 Ind. 130, 26 N. E. 676, 11 L. R. A. 55. See, also, Elliott, Roads and Streets (2d ed.) §159; 37 Cyc 12 et seq. Where the ground has been used by the public as a highway continuously for twenty years, the theory of a dedication may be ignored. Cromer v. State (1899), 21 Ind. App. 502, 52 N. E. 239. There is no error in the conclusions of law.

(4) Under the fourth assignment appellant presents the following contentions:

(a) That the evidence does not sustain that part of the decision wherein the court has found that the use of the strip by the public was adverse to appellant; but that the evidence “brings the case within a line of decisions which hold that where owners of land devote a portion of it for use as an alley for their own private purposes, such alley will not be converted into a public highway simply because the public also use it in conjunction with the owners.” We have carefully examined the evidence, and we find that it tends fairly to support the finding in this respect.

4. (b) That the court erred in admitting in evidence certain copies of deeds, because the county recorder certified-that each was a “true and correct” copy of the original, instead -of using the statutory words “true and complete.” §478 Burns 1914, §462 R. S. 1881. In this there was no. error. The form of certificate is a substantial compliance with the statute. See Keesling v. Truitt (1868), 30 Ind. 306; Cleveland, etc., R. Co. v. Gannon (1916), 63 Ind. App. 289, 112 N. E. 411.

5. (c) That the court erred in permitting William H. Everoad to testify to a conversation between Buck Jones and C. D. Kerr. As Bissell’s • agent, Jones sold the real estate now owned by appellee to Kerr, and the conversation related to the alleged parol license by which Kerr was authorized to use the strip for a driveway as averred in the second paragraph of complaint.

6. We are of the opinion that the testimony was properly admitted. Welz v. Rhodius (1882), 87 Ind. 1, 44 Am. Rep. 747; Robinson v. Thrailkill (1887), 110 Ind. 117, 10 N. E. 647; Dodge v. Johnson (1904), 32 Ind. App. 471, 67 N. E. 560. In any event it was harmless, because it affirmatively appears that it was ignored by the court.

Judgment affirmed.