81 Ind. App. 554 | Ind. Ct. App. | 1924
Action by appellee against appellants for damages. A trial by jury resulted in a verdict in favor of appellee for $500 damages, upon which, after motion for a new trial was overruled, judgment was rendered. The error assigned and presented in this court is the action of the court in overruling appellants’ motion for a new trial, in which appellants have specified ten errors. Appellee, with much merit, challenges appellants’ brief because of its failure to make reference to these errors, or to address any point or authority thereto, or to discuss the same. It must be conceded that appellants have not made specific application to the propositions of law to the alleged errors, but it is apparent that they have in good faith tried to help the court by presenting their view of the law controlling the case, by which we readily determine that they undertake to present the insufficiency of the evidence to sustain the verdict, and that the verdict is contrary to law.
The action is for damages resulting from appellants’
It is the law that if, at the time of the grant of an easement, the condition of the place where the right is to be exercised is unfit for the purposes thereof, the grantee may make such alteration as will render the grant effectual, and if, after such grant of an easement, it becomes useless because of the change in the grade of the public highway with which it connects, or for other reasons, the owner of the way may lower the grade to a corresponding level. White v. Eagle, etc., Hotel Co. (1894), 68 N. H. 38, 34 Atl. 672. As expressed in United N. J. R., etc., Co. v. Crucible Steel Co. (1915), 85 N. J. Eq. 7, 95 Atl. 243, it is the right of a dominant owner to do whatever is reasonably necessary to the enjoyment of an easement, and to keep it in a proper state of repair. It was certainly necessary to the enjoyment of the private way that appellants should so adjust the grade of the way as to make it accessible from the street, otherwise it was useless.
In Rotch v. Livingston (1898), 91 Me. 461, 40 Atl. 426, the action was to restrain the defendants from excavating, grading, draining and also building a sidewalk upon a strip of land ten feet wide in front of plaintiff’s premises, being a part of a private way fifty feet in width as originally laid out by the former owner, and it was held that the action could not be maintained, the court holding that as the right of the grantee was
In Freeman v. Sayre (1885), 48 N. J. Law 37, 2 Atl. 650, it was held that — “When a private way, common to various persons, is created as this was, each owner has a right to remove obstructions and adapt the land to its reasonable use as a way. The adaptation must doubtless be so made as to do no unnecessary injury to adjoining property. But the right of abutting owners must be subject to the right of appropriate adaptation of the surface of the way to the use designed in its creation.” (Our italics.)
In Herman v. Roberts (1890), 119 N. Y. 37, 23 N. E. 442, 7 L. R. A. 226, 16 Am. St. 800, the rights of a grantee of a way were involved, and the court said that such grantee “acquired the right to enter upon the land and construct such a road-bed as he desired and to keep the same in repair. He could break up the soil, level irregularities, fill 'in depressions, blast rocks and not only remove impediments, but supply deficiencies in order to constitute a good road.”
From the foregoing authorities, and there are many others to the same effect, the rule is well established that the grantee of a way is impliedly granted the right to put the same in such condition as to make it usable and convenient for the purposes
In Block v. Hazeltine (1892), 3 Ind. App. 491, it was held that the law seems to be settled that an adjoining landowner had the right to excavate upon his own land for all lawful uses and purposes which he may contemplate, and we may add, that, in the absence of negligence, which is not here involved, if injuries result to the adjoining land by such excavation, it is damnum absque injuria. There can be no action maintained therefor.
The judgment is reversed, with instructions to the trial court to grant a new trial.