57 Ind. App. 100 | Ind. Ct. App. | 1914
The controversy in this action involves the question of the ownership of certain buildings and other structures used by appellee in conducting Chautauqua assemblies, and the respective rights of appellant as owner, and appellee as lessee in and to the use of the lands on which said assemblies are held. The principal point presented is as to the sufficiency of the evidence to sustain the decision of the trial court.
At the trial, apparently for the most part by common consent, the rules governing the admissibility of evidence were somewhat loosely applied. There is no assignment in the motion for a new trial based on the admitting or rejecting of offered evidence. An abstract of the evidence is in part as follows: For more than twenty years prior to 1908,
One claim made at the trial was to the effect that Mr. Parker had paid for the improvements with his own money, and that the company had not repaid him, and that the improvements having been made on Mr. Parker’s land must be deemed to be a part of the land, and that they passed to appellant under the conveyance. There was evidence that when Mr. Parker at any time had exhausted the funds of the company in paying for improvements, he executed the company’s note to the bank with which he was connected to procure additional funds or to replete an overdrawn account. There was evidence that he stated shortly before he severed his connection with the company that except a few scattering accounts of small amounts, the company owed no debts other than the notes held by the bank. In making such statement, he did not claim that the company was indebted to him. The court heard evidence of the statements of certain individual officers of the company after appellant had purchased the lands, by which they apparently conceded that appellant owned the Parker cottage, and also explanations by such officers that when such statements were made they did not know that the funds of the company were used in building the cottage.
Shortly after the reorganization in 1904, to wit, on June 15, 1904, Mr. Parker drew up a lease, which was executed by himself and wife and by the secretary of the company, and thereafter duly recorded, by which he leased the seventy acres, except the farmhouse thereon and the appurtenances
Prior to 1902, a public highway, extended in a southeasterly direction through said west forty acres. In said year an arrangement was made to the effect that Mr. Parker should petition the board of county commissioners for the vacation of the road, and the vacation being accomplished, a road should be opened up, extending from a public highway on the east side of the lands west along the north side, of said ten-acre tract to and into the grounds, such road to be used as a means of access to the grounds, and also to the farm buildings, which were situated- on the south end of the west forty acres. Such arrangement was carried out. The public highway was vacated by the board of commissioners, without opposition, and the contemplated road was opened up and graded and graveled, the expense of improving it being paid in part by appellee and in part by Mr. Parker. At the trial, appellee contended that the opened road was a public highway, while appellant contended that it was merely a private way for the use of appellee and its patrons, and for the convenience of the occupants of the farm buildings. The evidence showed that the road was kept closed by a gate or other means, except during the sessions of said Chautauqua, at which times appellee and its patrons used it freely.
Appellant for a number of years had resided near the assembly grounds, and frequently attended the sessions. He knew prior to the purchase of the land that appellee had it
The answer to the cross-complaint was a general denial. Trial by the court, resulting in a judgment and decree to the effect that appellee is the owner of the various buildings and structures situated on the forty-acre tract, except the tabernacle, and that appellee may remove them from the premises at any time before the expiration of the lease, and that it has a right under the lease to occupy and use the premises, including the tabernacle and race track and infield on the thirty-acre tract, until the expiration of the lease, during which time appellant is enjoined by a specific order from doing anything on or with the lands inconsistent with or prejudicial to appellee’s occupancy for Chautauqua purposes. Appellant is ordered to restore the amphitheatre and judges’ stand, and failing so to do, that appellee may do the work, in which event judgment in the alternative for the sum of $200 is given. The court adjudges the highway to be a private way, and decrees that appellant may close it by gates except in the months of July and August of each year, during which time appellee and its patrons may have free use of it, as an open, unobstructed way, and that at all other proper times, appellee may enter the grounds over the road for the purpose of preserving its property and making repairs, and appellant is enjoined from interfering with such use of the road. Appellant is adjudged to be the owner of the tabernacle, subject to appellee’s right to use it as aforesaid.
Under the motion for a new trial for cause, appellant assigns and discusses the alleged insufficiency of the evidence, and that the amount of recovery is erroneous, being too large. As to the sufficiency of the evidence, appellant as a witness at the trial testified that he had destroyed the judges’ stand and that he had dismantled said amphitheatre, situated on said thirty-acre tract. This tract was described in the lease as a part of the lands thereby leased. "While possibly appellee did not use such structures and the race track and infield every year in connection with Chautauqua assemblies, yet as a rule they were so used, and they were not included among the reservations made by the lease. There was evidence to sustain the court’s decision in its relation to such phase of the case. There was evidence also to sustain the decision respecting the road and the right to use the auditorium. As to the other buildings and structures situated on the forty-acre tract, it is apparent from the abstract of evidence hereinbefore set out that it is amply sufficient to sustain the court’s decision if properly admitted, and if it has proving force.
As indicated, the court awarded an alternative judgment against appellant in the sum of $200 based on the fact of the destruction of the judges’ stand and the dismantling of the amphitheatre. There is evidence to sustain the amount of the judgment. Moreover, if appellant believes the judgment to be excessive, he may escape its consequences by restoring the buildings at his own expense, as ordered by the court.
There is no error in the record for which the judgment should be reversed. Judgment affirmed.
Note. — Reported in 106 N. E. 384. As to parol evidence to explain mercantile and other written contracts, see 6 Am. Rep. 678; 28 Am. Rep. 210. See, also, under (1) 29 Oye. 1035; (2, 3) 24 Oye. 916; (4) 3 Oye. 360.