89 Ind. 128 | Ind. | 1883
Lead Opinion
The question in this case is: Can the owner of a lot abutting upon a street maintain an action of ejectment against a railway company which has laid its track thereon without having paid or tendered compensation?
It is settled that the owner of a lot abutting upon a public street owns to the center, and that his title is a fee burdened only by the easement of the public. It is also the rule in this State that the lot owner may maintain an action against the railroad company for damages. Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Terre Haute, etc., R. R. Co. v. Scott, 74 Ind. 29, auth. p. 38. Counsel for appellant contend that these cases do not decide that an action of ejectment may be maintained. The last of the cases declares that the lot owner may vindicate his rights by the usual legal remedies, and in the first the judge who delivered the opinion declares that ejectment will lie. But, without stopping to consider whether these cases do decide this'question, we pass to one which does directly decide it, Sharpe v. St. Louis, etc., R. W. Co., 49 Ind. 296. In that case the action was for possession, and it was held that it would lie. It is true that there is no discussion of the question, and that the opinion is rested entirely upon Cox v. Louisville, etc., R. R. Co. We adhere to the conclusion,'there reached, for we regard it as sound in principle and supported by authority. The right to possession is in the owner of the fee, for neither the public nor the municipal corporation can maintain an action for possession. Their rights may be vindicated but not in such an action. Certainly, the right to maintain the proper possessory action must reside somewhere, and, as it does not reside in the public or the municipality, it must be in the owner of the fee. It is true that in the case of City of Cincinnati v. White, 6 Peters, 431, a different doctrine is
Judgment affirmed.
Rehearing
On Petition for a Eehearing.
In appellant’s .petition for a rehearing it is argued that our former opinion should not stand, for the reason that the complaint is insufficient. We suppose that no one would seriously contend that the sufficiency of a complaint is before this court unless it was challenged by demurrer in the court below, and error assigned on that ruling, or by motion in arrest followed -here by a proper assignment, or else by an assignment here directly questioning the sufficiency of that pleading. In no one of these methods, nor in any form, is the sufficiency of the complaint brought into question. This is a complete answer to so much of the argument on the petition as refers to the validity of the complaint.
Inasmuch as it has been represented to us that other cases are depending on the decision in this, we have thought it, proper to decide the question of the sufficiency of the appellee’s complaint. . The property is specifically described, and this description is followed by the statement “ that said real estate abuts on First street, in the city of Terre Haute, and the defendant unlawfully and without right has taken possession of said First street.” This description is sufficient, at least after verdict. The owner of a lot abutting on a street owns, the fee to the middle thread of the street, and as the pleading gives a full description of the lot, and shows that it abuts on the street, it shows an ownership of the fee to the center of the highway, burdened only by the public easement. This; principle is recognized and enforced in many cases. In Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467, it was said: “ The lot, and street adjoining, then, as to the owner of the former,
Not a single authority is adduced against the position assumed in the former opinion. We have no doubt at all as to the right of the owner of the fee to maintain ejectment against a wrong-doer, although the fee is burdened by a public easement. Our own cases, as we have shown, so declare, and so do all the well considered cases. The latest discussion of the subject fully sustains our view, and from it we shall not depart. Sedgw. & Wait Trial of Title to Land, sections 132,135.
The ownership of a lot abutting on a highway vests a right to the fee to the center of the highway. We have never seen, nor do we expect to ever see, two deeds, one conveying the lot and the other the land lying in the street. Such a thing could only happen where one employed a conveyancer who had no knowledge of a familiar rule of law. We understand the rule to be perfectly well, settled that a conveyance of a lot adjoining a highway carries title to the center. 3 Washb. Real Prop. (4th ed.) 429; 2 Dillon Mun. Corp. (3d ed.), section 633; 3 Kent Com. 434; Haynes v. Thomas, 7 Ind. 38. The title of the owner of an abutting lot is, as a matter of law, presumed to extend to the center of the highway. Rice v. County
A property owner is not estopped from maintaining his action because he does not forbid the occupancy of the street by the railroad company. There is no element of estoppel present. There is an entire absence of fraud. There is not knowledge on one side and ignorance on the other. As well might a trespasser claim that the true owner is estopped from reclaiming his land because he did not object to the trespasser’s using it. If the railroad company had possessed color of title created by the act of the owner, a different question would be presented. No other semblance of title, however, was possessed than such as arose from the act of the owner of the dominant estate. We deem far beyond controversy the proposition, that the owner of the fee can not be ousted from his estate by the acts of the owner of a dominant estate possessing an easement in the land.
Petition overruled.