73 Ind. App. 266 | Ind. Ct. App. | 1920
Complaint by appellant against appellee Harrison W. Wynn and Sarah E. Wynn in two paragraphs to quiet title to certain real estate.
The first paragraph of complaint alleged title in fee, while the second alleged title by adverse possession. The real estate in question was triangular in form. Appellant’s tracks run over and along the west side of the land. East of the railroad tracks there was located a coal yard, wagon scales, receiving yards and stock pens. There was a judgment quieting appellant’s title to the land on which its tracks are located, and a judgment against it that it was not the owner of that part lying north and east of its tracks upon which the coal bins, scales, receiving pens and stock pens were located.
The only question involved in this appeal relates to that part of the judgment and decree wherein it was decreed that the appellant was not the owner of the land north and east of its tracks. Appellant contends that the decision of the court is not supported by sufficient evidence. Appellant’s claim of title to the property in question is based upon adverse possession.
In order to establish title by adverse possession, there are five indispensable elements, namely: (1) Such possession must be hostile and under claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must be exclusive; ánd (5) it must be continuous. Worthley v. Burbanks (1897), 146 Ind. 534, 45 N. E. 779.
If the evidence upon any one of these elements is conflicting, the judgment of the trial court must be af
Coal bins large enough to hold a carload of coal were erected between the receiving pen and the railroad and were maintained and used about fifteen years. There is now, and for the last twenty-five years or more has been, an elevator on private property west' of the railroad track and south of the depot. A corn crib large enough to hold a carload or more of corn was erected by the owners of the elevator on the land now in controversy, and was used by the owners of the elevator until torn down in 1916. The evidence does not show when this crib was erected, although it appears that it was in use from fifteen to twenty-five years. There is no evidence that the appellant ever had the exclusive possession of the land in controversy lying north of the stock pens upon which the receiving pens, the corn crib and seales were located, or that it ever claimed to own such land, or to exercise any act of ownership over it.
We do not deem it necessary or profitable to set the evidence out in detail, or to enter into a further discussion of it. The evidence is at least conflicting upon the question of exclusive possession in appellant for a period of twenty years. Under such a state of the evidence, we cannot disturb the finding of the trial court.
The judgment is affirmed.