48 Ind. App. 211 | Ind. Ct. App. | 1911
This suit was brought by appellee against appellant to quiet title in her to a right of way through appellant’s land. The complaint is in one paragraph. The cause was put at issue by a general denial, there was a trial by jury, a general verdict for appellee, answers to interrogatories filed therewith, and a judgment on the verdict in favor of appellee, from which appellant took this appeal.
The errors assigned and relied on by appellant for reversal call in question the ruling of the court on the motion for a new trial, and the motion for judgment in appellant’s favor upon the answers to interrogatories.
The facts in this ease about which there is no dispute are, in substance, as follows: For fifty years or more appellee’s father, John Rhodes, Sr., deceased, and Perry Timmons owned adjoining tracts of land in Fountain county, Indiana, located between two roads, running parallel north and south, and about one and one-fourth miles apart, the road on the east being known as the “Terre Haute road” and the road on the west, the “river road.” The Rhodes tract was the closer to the Terre Haute road, and, in fact, contained and embraced a strip of ground of one acre, used for road purposes, which extended out to said Terre Haute road, thereby giving to said Rhodes a direct outlet and passageway over his own land to said Terre Haute road. It appears also from the evidence that the way as used by said Rhodes to get from his premises to said Terre Haute road was a continuation of the way in question. Said Timmons tract adjoined said Rhodes tract on the west and
the way passes, showing the location of the road with reference thereto.
In his argument, appellant first discusses the sufficiency
Appellee, on the other hand, insists that the general allegations of the complaint “are comprehensive enough to include the right of way derived by any of the well-recognized means — by grant, prescription or - necessity” — and cites as supporting this position the cases of Mitchell v. Bain (1895), 142 Ind. 604, Steel v. Grigsby (1881), 79 Ind. 184, 186, and others. These eases lend support to appellee’s position, and this theory seems to have been adopted by the court below and the parties in the trial of the cause, judging by the evidence, the answers to the interrogatories, and the judgment rendered in the case, as disclosed by the record; but under our view of the evidence in this case, as hereinafter expressed, it is not important whether the complaint be given the comprehensive scope claimed by appellee, or restricted and limited, as insisted upon by appellant. Our ultimate conclusion is the same in either event.
The first ground of the motion for a new trial is predicated on the insufficiency of the evidence to sustain the verdict. As reasons for urging this ground of the motion, counsel insist (1) that the evidence shows that appellee and her predecessors in title have at all times had over their own land a good- way out to said Terre Haute road; that the right of way in question has at no time been essential to the use and enjoyment of appellee’s tract of land, and that therefore no easement appurtenant to said real estate could be created by prescription, but that whatever easement, if any, was created by such use was in gross, and died with the person so using the way for the required length of time; (2) that the evidence shows that the right of way in question up to the time of the removal of the residence on appel
' ‘ Private ways are either appendant or in gross. Ways appendant are incident to an estate; they inhere in the land, concern the premises, pertain to its enjoyment and pass with the land. Ways in gross attach to and vest the right in the person to whom granted. Alley v. Carleton [1867], 29 Tex. 74, 94 Am. Dec. 260; Davidson v. Nicholson [1877], 59 Ind. 411; Moore v. Crose [1873], 43 Ind. 30; Sanxay v. Hunger [1873], 42 Ind. 44; Fankboner v. Corder (1891), 127 Ind. 164; Harding v. Cowgar (1891), 127 Ind. 245. Ways in gross cannot be assigned or granted to another.” Hoosier Stone Co. v. Malott (1891), 130 Ind. 21.
It is also true that there was considerable evidence tending to show that the use of the way in question by John Rhodes, Sr., grew out of the friendly relations existing between him and his neighbors, appellant’s predecessors in title, and that there was in the beginning of the use some agreement between said Rhodes, and said Timmons, both
Appellant also insists that the verdict was contrary to law, but as the same questions are presented on the motion for judgment on the answers to interrogatories, we have considered this question under that error assigned. No error was committed by the trial court in overruling the motion for a new trial.
Appellant insists, however, that the answers to these interrogatories exclude every conclusion that will authorize a recovery, and, as ground for so insisting, says that the answers to the interrogatories find that appellee had a good way over her own lands to the Terre Haute public highway, and that therefore the way in question is not one of neces
In the case of Avery v. Akins, supra, our Supreme Court, at page 290, quotes with approval from a California case: “In Wade v. Deray [1875], 50 Cal. 376, it was held to be ‘well settled that a decree or judgment in partition has no other effect than to sever the unity of possession, and does not vest in either of the eotenants any new or additional title. After the partition, each had precisely the same title which he had before; but that which before was a joint possession was converted into a several one.’ See, also, Knight v. McDonald [1871], 37 Ind. 463, and Teter v. Clayton [1880], 71 Ind. 237.”
Moore v. Crose, supra, was a case where an easement claimed to be appurtenant to the land was involved. There was also a quitclaim deed afterward made to said easement. In discussing that case the Supreme Court said: “The appellant claims that the way was appendant or appurtenant to the land conveyed by that deed. If so, the right to the way passed by the deed conveying the land, and not by the separate quitclaim deed.”
The quitclaim deed made by the heirs of John Rhodes, Sr., separating and dividing the lands of their deceased father among themselves, only operated to transfer such interest as the respective grantors had inherited from their deceased father to the respective grantees of the several deeds, and created no new title in'1 such grantees.
In the case of Stephenson v. Boody (1884), 139 Ind. 60, 68, the Supreme Court said: “The general proposition is abundantly maintained by the adjudged cases that a deed of release, or quitclaim, as was the case here with at least one of the deeds, or a conveyance of the right, title and interest
The following language in the case of Ellis v. Bassett, supra, at page 120, is particularly applicable to this case: “A right of way, upon a severance of the estate by partition between heirs, sometimes arises when it would not exist in case of a conveyance of one portion of the premises. And it may be laid down as a general rule that a partition of real estate among heirs carries with it by implication the same right of way from one part to and over the other as had been plainly and obviously enjoyed by the common ancestor, in so far as it is reasonably necessary for the enjoyment of each part. Goodall v. Godfrey [1880], 53 Vt. 219, 38 Am. Rep. 671; Collins v. Prentice [1842], 15 Conn. 39, 38 Am. Dec. 61; Burwell v. Hobson [1855], 12 Gratt. 322, 65 Am. Dec. 247; Kilgour v. Ashcom [1820], 5 Harr. & J. 82; Seymour v. Lewis [1861], 13 N. J. Eq. 439, 78 Am. Dec. 108; Elliott v. Salle [1862], 14 Ohio St. 10. Where the owner of an estate imposes upon one part an apparent and obvious servitude in favor of another, and at the time of the severance of ownership such servitude is in use, and is reasonably necessary for the fair enjoyment of the other, then, whether the severance is by voluntary alienation or by judicial proceedings, the use is continued by operation of law. John Hancock Mut. Life Ins. Co. v. Patterson [1885], 103 Ind. 582, 53 Am. Rep. 550.”
So far as these easements mentioned are concerned, the proof does not disclose whether they were appurtenant to the land, and would have passed by the conveyance of the dominant estate. They may have stood upon an entirely different footing from the omitted easement, and it may have been necessary to mention them in order that title thereto might pass, whereas it was not necessary to mention the easement in question to pass the title thereto, provided, of course, that we are correct in our conclusion that the jury was warranted in finding that this easement was appurtenant to the land.
The heirs of decedent attempted to quitclaim to each other only such easements as they themselves controlled. The easement over appellant’s land they could not control and an attempted conveyance or release and quitclaim thereof, so far as it affected appellant’s land, would have been a
Judgment affirmed.