176 Ind. 521 | Ind. | 1911
In 1893 Peter Kline died testate, the owner of 120 acres, of farm land in Newton county. By his will he devised an estate therein to his wife, Elizabeth Kline, for life, and at her death an estate therein to his daughter, appellee Anna M. Dowling, for the remainder of her life, with remainder in fee to the children of Anna M. Dowling.
In 1897, the widow, Elizabeth Kline, conveyed her life estate to Peter Kline, who, in 1901, conveyed it to appellant, who has since occupied it and received the rents and profits thereof.
In 1905, as the result of certain legal proceedings, a par
In April, 1908, a petition was filed in the court having jurisdiction thereof, to construct a tile drain which affected the Kline land, and said land was assessed $900 for the construction thereof. The land was also, about the same time, assessed $16.20 for the construction of another tile drain.
Appellees, Carrie Dowling, Annie Dowling, Thomas Dow-ling and William Dowling, Jr., are the children of appellee Anna M. Dowling.
In his complaint against appellees, appellant alleges that the contractor foreclosed his liens for constructing the fences, and that he was compelled to pay them; that the partition fences erected are of heavy wire, fastened to heavy wooden posts, and are so constructed that they are a lasting and permanent improvement to the real estate; that the ditches are permanent and lasting improvements; that the widow, Elizabeth Kline, is sixty-six years of age; that defendants refuse to pay any portion of the cost of the fences and drains, and he prays for a decree apportioning the cost of the several improvements among the owners in proportion to their respective benefits, and that he - have judgment against' defendants for their proportionate shares thereof.
The court made a special finding of facts, and stated its conclusions of law thereon. Judgment was entered in favor of defendants in the matter of the cost of the fences, and it was adjudged that appellant should pay half the ditch assessments, and appellee Anna M. Dowling, should pay three-fourths of the remaining half, and her children
Appellant has assigned as errors the overruling of the motion for a new trial, and that the court erred in each conclusion of law.
It is contended by counsel for appellant that appellees should be required to bear a portion of the burden of the cost of erecting the fences, and that appellant should not be charged with as much as half the cost of the tile drains.
We find no reversible error in the court’s conclusions of law on the facts found.
Counsel for appellant zealously contend that the decision is unsupported by the evidence and is contrary to law.
prorated between the life tenant and remaindermen, taking into account the probable duration of the life estate, and other relevant facts. Hay v. McDaniel (1901), 26 Ind. App. 683; Huston v. Tribbetts (1898), 171 Ill. 547, 49 N. E. 711, 63 Am. St. 275; note to Peak v. Peak (1910), 137 Am. St. 638, 662; note to First Congregational Church v. Terry (1906), 114 Am. St. 443, 449; 16 Cyc. 629.
Whether, in this case, the fences should be deemed, to any extent, permanent improvements, it is not necessary to decide, although the evidence shows that they were constructed of good woven wire, attached to red cedar and hedge posts, and that Elizabeth Kline, the widow, was then sixty-six years of age. The evidence shows that the new fences for the most part were on lines where old fences, constructed of boards and wire attached to oak posts, existed at the time of the conveyance to appellant. A small part of the old fencing consisted of live hedge, which had become insufficient. Witnesses for appellees testified that in 1902 appellant removed the boards from the old fences, hauled them to another farm he owned, and there used them in constructing a stable. The evidence supports the decision of the lower court on the fence question. Appellant was not in a position to demand contribution for the expense of erecting new fences, even if it be conceded that such new fences were permanent improvements.
benefits and resulting assessments for the new ditch Avere increased. In view of this fact, we cannot say that the court erred in charging appellant with half the cost of the assessment for the new drains.
There is no error in the record. Judgment affirmed.