154 Ind. 562 | Ind. | 1900
Appellee brought this action to quiet her title to an easement in a way ten feet wide on the north side of her real estate, and to remove an obstruction placed there by appellants. Appellants’ demurrer to the complaint was overruled. Appellants filed a cross-complaint- alleging that they and their grantors had been in quiet, peaceable, exclusive, and uninterrupted possession of the real estate in dispute for more than twenty years before the commencement of the action, and asking that their title thereto be quieted. The ease was put at issue, and a trial thereof by the court resulted in a finding and judgment in favor of appellee. Appellants obtained a new trial as of right, and the cause was tried by a jury, and a general verdict returned in favor of appellee. Answers to interrogatories submitted by the court were also returned with the general verdict. Over a motion by appellants for a judgment on the interrogatories, notwithstanding the general verdict, and a motion for a new trial, judgment was rendered on the verdict in favor of appellee.
The assignment of errors calls in question the action of the court in overruling the demurrer to the complaint, appellants’ motion for a judgment on the answers to the interrogatories, notwithstanding the general verdict, and appellants’ motion for a new trial.
It is alleged.in the complaint, among other things, “that appellee and her husband, under whom she holds title, have owned certain real estate [describing it] for more than twenty-seven years, and for more than twenty-five years there has'been an alley, ten feet wide, along the north side thereof, between the lands of appellee and the lands owned by appellants, dedicated by deed; that said alley has been open and used by appellee and appellants for more than twenty-five years, and a fence run along each side thereof,
It is next insisted by appellants that the court erred in overruling their motion for a judgment in their favor on the answers to the interrogatories. Appellants claim that “the verdict is not a general verdict, but only finds a few facts specially.” The verdict is as follows: “We the jury find for the plaintiff against the defendants, that they have obstructed the alley described in the comprint, that said obstruction should be abated and removed therefrom, and that plaintiff’s easement in said alley should be quieted thereto, and we find for plaintiff against defendants, on the cross-complaint. [Signed] E. .Brightmore, Eoreman of Jury.” The part of the verdict which precedes the first punctuation mark ■ is a general finding in favor of appellee against appellants. Then follows a finding as to the obstruction of the alley, and that the same should be removed, which is followed by a general finding in favor of appellee and against appellants on their cross-complaint. The verdict is clearly a general one de
Appellants call attention to one interrogatory only, which they claim is in conflict with the general verdict. This interrogatory sets out what purports to be a copy of a deed made by Charles Bielde and Anton Boush in 1868, conveying to William and James Ewing the right of way over a strip of ground ten feet wide on out lot two in the original plat of the town of Huntington, describing it; the east end of said strip being the west end of the right of way conveyed by said Ewings to said Boush and Bielde, and the west end thereof, Cherry street. The jury found in answer to said interrogatory that said deed was executed and delivered by the grantors to the grantees named therein on November 29, 1868. The rule is that answers to interrogatories cannot be aided by any presumption or intendments, but that all reasonable presumptions must be indulged in favor of the general verdict. Consolidated Stone Co. v. Summit, supra, p. 301, and cases cited. Under the rule stated, the fact that Such a deed was executed is not in irreconcilable conflict with the general verdict.
It is next insisted that the court erred in overruling the motion for a new trial. The first and second causes for á new trial are, that the verdict is not sustained by sufficient evidence, and that, the same is contrary to law. While there is a conflict in the evidence as to some of the facts, there is evidence which shows that out lot two in the original plat of the town of Huntington abuts upon Jefferson street on the east and Cherry street on the west; that a part, of said out lot, 132 feet north and south, abutting on Jefferson street and extending back the same width 140 feet and three inches, was, on and before November 29, 1868, the
Substantially the same facts concerning said way were found by the jury in answer to the interrogatories submitted by the court. Under said facts appellee was clearly .entitled to use said way, and appellants were guilty of an actionable wrong in obstructing the same.
The deed executed by Bickle and Roush and the deed executed by the Ewings must be construed together as one instrument in the light of the surroundings of the parties and the facts and circumstances of the case, and, when so construed, it is clear that the said way from Jefferson street to Cherry street was appurtenant to the real estate abutting thereon, and that the same was to be used as a means of ingress to and egress from said real estate, subject to the limitations mentioned in said deeds. Moreover, the parties who executed said deeds, and those holding under them, by their acts and conduct in fencing said way on each side thereof, and using the same from 1868 to 1895, a period of twenty-seven years, for ingress to and egress from said real estate abutting thereon, and erecting buildings oh and improving said real estate with reference to said way, have so construed said deeds. The ordinary rule is that where parties have, by their acts and conduct, given their contract a certain construction, Ihe courts will adopt that construe
It will be observed that the deed of Tuisch and wife to Anton Roush does not reserve five feet off of the north side of the real estate conveyed for an alley, but only provides that “said party is to grant a right of way on the north side of. said fifty-nine feet to be five feet wide, for an alley.” At the time the deed was executed, Bielde was the owner of the part of said out lot two immediately north of the part conveyed by • said deed to Roush. It is not shown that Tuisch, the grantor, ever demanded of Roush that he grant or give a right of way on the north side of the fifty-nine feet conveyed to him, and there is no evidence in the record showing that any other person had any right to demand such a grant, or the right to use said strip of five feet. The fact that such a provision was contained in said deed does not change the legal effect of the two deeds for said way, or the construction given them by the acts of the parties in open
The deed to Matilda Roush for the part of said out lot conveyed to her was executed in 1875, long after the deeds for said way were made and recorded, and after the same had been opened and the fences built; and the reservation of the five feet along the south side for an alley can in no way affect the way as then located and used. Whatever title' said appellant acquired to said real estate under said deed was subject to the way existing thereon at the time of said purchase. Bales v. Pidgeon, 129 Ind. 548; Ellis v. Bassett, 128 Ind. 118; Fankboner v. Corder, 127 Ind. 164. Moreover, the use of said way by the abutting owners as it existed when said appellant received her deed continued until appellants obstructed the same in 1895. It follows, therefore, that the verdict is sustained by sufficient evidence, and the same is not contrary to law.
A number of causes assigned for a new trial on account of the admission of evidence over appellants’ objections are predicated upon the theory that appellee and those under whom she holds acquired no interest in the way conveyed by said deeds, or by virtue of the location and use of said, way, and the improvement of her real estate with reference to said way. What we have said concerning said deeds and the facts established by the evidence disposes of all such causes for a new. trial.
Several causes for a new trial call in question the action of the court in allowing witnesses to testify, over appellants’ objection, to the number of years said way had been used as such. This was not error, although it was not alleged in the complaint that appellee had title to said way by prescription. Under the allegations of the complaint, appellee had the right to prove the length of time said way had been used as such, that the same had been fenced on each side, where the fences were located, and all other facts
At the close of the evidence in the case, as the jury was about to be sent to view the premises, appellee’s . counsel said: “We want to ask Mr. Roush one question as to whether he has not been digging there in that alley this morning, and if it was not for the purpose of manufacturing testimony?” Counsel for appellants thereupon moved the court to instruct the jury that the remark made by counsel for appellee should be disregarded by them. The court said: “I have instructed the jury that they should not pay any attention to side remarks in the case.” Appellants then moved the court specifically to instruct the jury to disregard the remark just made by appellee’s counsel, and the court failing to give such specific instruction appellants excepted. This ruling of the court is assigned as a cause for a new trial. The instr'uction given called the attention of the jurors to the fact that he had already instructed them to pay no attention to such remarks, and, in effect, repeated this instruction to them. This was clearly as
The correctness of each instruction given to the jury and the action of the court in refusing to give each of certain instructions requested by appellants are severally challenged by a number of causes assigned for a new trial. Such of said causes as are not disposed of by what we have said concerning the deeds for said way, and the construction given thereto by the acts and conduct of the parties, and the evidence being sufficient to support the verdict, are not available, because the answers of the jury to the interrogatories submitted to them show that appellants were not injured by the giving or refusal to give any of such instructions. Under such circumstances, errors in giving or refusing to give instructions are harmless, and therefore furnish no ground for reversal. Sievers v. Peters, etc., Co., 151 Ind. 642, 662; Ricketts v. Harvey, 106 Ind. 564; Cline v. Lindsey, 110 Ind. 337, 348; Moore, Adm., v. Lynn, 79 Ind. 299; Cleveland, etc., R. Co. v. Newell, 104 Ind. 264, 272, 273, 54 Am. Rep. 312.
It follows that the court did not err in overruling the motion for a new trial.
Judgment affirmed.