144 N.E. 144 | Ind. Ct. App. | 1924
Suit by appellee to quiet title to an easement in a roadway over land of appellant. In his complaint, appellee charges that he is the owner of a certain tract of land lying immediately south of land owned by appellant, and that for more than thirty years he and his immediate and remote grantors have had a right of way fifteen feet in width extending across the land of appellant.
On the trial, there was a general verdict for appellee. With the verdict, the jury returned answers to interrogatories. A motion by appellant for judgment non obstante veredicto was overruled, and judgment rendered for appellee.
The only error assigned and properly presented is the action of the court in overruling the motion for judgment on answers to interrogatories.
The jury by its answers to certain of the interrogatories found that at the time of the trial appellant and appellee respectively owned the adjacent tracts of land as averred in the complaint; that appellant, in 1912, had obtained his land from Clements A. Knust who had acquired it from John C. Knust in 1900; that the land owned by appellee was, in 1918, obtained by him from Paul Schenetzky who, in 1905, had purchased the same from Henry Weyer; and that Weyer had been the owner thereof continuously from 1898 to 1918. The jury further found that for the privilege of using the roadway from 1898 to 1905, Henry Weyer paid to the Knusts an annual rental of two dollars, and that, in 1905, Clements A. Knust closed the roadway by means of a *435 gate, and kept it closed for a period of four or five days.
It is earnestly contended that the findings of the jury that rent was paid for the seven years from 1898 to 1905, and that the way was temporarily closed in 1904, are in irreconcilable conflict with the general verdict. This contention is based primarily upon the proposition that appellee must recover, if at all, by a finding of adverse user of the roadway for a continuous period of twenty years immediately preceding the commencement of this suit on May 21, 1921. We cannot concur in this view.
It is settled law in this state that the conflict between answers to interrogatories and the general verdict, which will overthrow the verdict, must be such as cannot be removed 1-3. by evidence legitimately admissible. Cincinnati, etc., R. Co. v. Smock (1892),
Whether the owner of the dominant estate has, by his declarations, acts or conduct, abandoned an easement acquired by adverse user is ordinarily a question of intention, 4, 5. depending upon the facts of each particular case, and is a question for the jury. Snell v. Levitt (1888),
If, on the trial, there was evidence submitted to the jury sufficient to establish the fact that the easement had accrued prior to 1898, then the fact, as found by the jury, that 6, 7. rent had been paid from 1898 to 1905, would not necessarily defeat the right to *437
the easement. Perrin v. Garfield, supra; Tracy v. Atherton
(1864),
In the absence of the evidence, the mere finding of the jury that in 1904, the servient owner, by means of a gate, closed the way for four or five days is not sufficient to overthrow 8. the general verdict. See Young v. Star Omnibus Co. (1902), 86 L.T. (N.S.) 41; Edgerton v. McMullan (1895), 55 Kans. 90, 39 P. 1021; Barnwell v. McGrath (1840), 1 McMul. (S.C.) 174, 36 Am. Dec. 254.
The trial court did not err in overruling the motion for judgment on answers to interrogatories.
Affirmed.