68 Ind. App. 56 | Ind. Ct. App. | 1918
In the year 1883 Mary E. Carey owned lot 262 and the adjoining west half of lot 18, both
“The parties of the first part in consideration of a part of the purchase money do hereby agree by and with the said parties of the second part to grant to them a perpetual right of way ten (10) feet wide on and along the west, line of Lot (18) Eighteen from Market street to the south bank of Flint creek and it is hereby expressly understood that said right of way is granted to and for the benefit of the lot hereby conveyed and to none other.”
The Anglemyers continued to hold title to the lands thus conveyed and remained in possession thereof until November '22, 1913, when they conveyed the same lands by warranty deed to appellant, who brought this suit against appellees to quiet his title to a ten-foot strip of land along the west line of lot 18 and to enjoin appellees from obstructing the same.
Appellees answered by general denial, and also filed a cross-complaint in which they seek to quiet their title to a portion of the said ten-foot strip of land. It is averred in the cross-complaint, in substance, that the ten-foot strip in question was granted as a right of way for the use of the land conveyed, extending from Market street to Flint creek; that lot 18 is bounded on the north by Flint creek, and at the point where the north end of the right of way would terminate there was a steep bank and a deep channel, and said right of way was not connected with any
Appellant answered the cross-complaint by general denial. There was a trial by jury and a verdict for
The only error assigned is the overruling of the motion for a new trial. Appellant in his brief challenges some of the instructions, but in the oral argument the action of the court as to these matters was admitted to be substantially correct, and there remains but one question, and that is the sufficiency of the evidence to sustain the verdict.
It will be observed from the deed of conveyance that appellant was granted an easement appurtenant to the lot purchased and for the sole benefit thereof. Not only is this apparent from the grant itself, but such seems to be the theory upon which the complaint was framed and the cause tried, as well as the construction given the grant by all the parties. Therefore the controlling question for our determination is, Can such an interest in lands be abandoned, and, if so, do the facts of this case show an abandonment?
It is not necessary for us to repeat the evidence introduced at the trial; it is sufficient to say that there is some evidence tending to support each material averment of the cross-complaint.
Applying the legal principles above announced to these facts, we believe the evidence was sufficient to warrant the conclusion reached by the jury that the Anglemyers and appllees had in fact intended to and did abandon that portion of the right of way here involved.
Judgment affirmed.
Note. — Reported in 119 N. E. 1010. See under (1) 1 C. J. 11; (2) 19 C. J. 940; (3) 19 C. J. 942; (4) 19 C. J. 940.