36 Ind. App. 348 | Ind. Ct. App. | 1905
The appellee, alleging that he was the owner and in possession of certain real estate in Laporte county, adjoining and passing in front of which was a public highway, of so much of which as was adjacent to said real estate, to the middle of the highway, he was the owner in fee, sought damages from the appellant for injury, by cutting, to certain trees owned by him growing on that part of the highway so owned by him. The appellant answered by general denial and by a second paragraph, wherein it alleged that it was a corporation engaged in the business of transmitting for hire messages by telegraph throughout the United States and Canada, and had accepted the benefits and restrictions of the act of congress of July 24, 1866, under which it had the right to use the highways in all portions of the United States as post-roads and for the purpose of erecting its poles and lines of wire for the transmission of messages; that in the exercise of such right it constructed a line of wire supported by poles along said highway and adjoining the property of the appellee; and that any and all cutting and trimming of the trees along the highway, done by the appellant, were necessary to the proper construction and maintenance of the line, and were done without malice, and for the sole purpose of properly constructing, maintaining and protecting the line, and under and by virtue of the rights secured to the appellant by said act of congress. To this second paragraph of answer the appellee replied by general denial and by a special paragraph alleging that the appellant cut the trees a specified number of feet more than was reasonably required or necessary for the construction and proper maintenance of the line, etc.
The cause has been in this court before (Western Union Tel. Co. v. Krueger [1902], 30 Ind. App. 28), when a
There was also introduced in evidence on behalf of the appellee a sheriff’s deed of conveyance dated March' 6, 1893, under a judgment against Julia A. McCartney and William B. McCartney, and purporting to convey to said Low their interests in real estate described as in.the deed of conveyance of Low to the appellee; and there was proof of Low’s possession under the sheriff’s deed at the -time of his conveyance to the appellee. There was introduced for the appellee a plat, recorded May 13, 1873, of Cheeney’s subdivision of parts of said two sections, showing the north line thereof as being the line dividing the southeast quarter of section twenty-eight, township thirty-eight north,
There was no attempt on the part of the appellant or of the appellee by evidence to trace the title back to its original source. The appellant introduced a deed of conveyance from Herman Lawson to John E. Oheeney, dated September 14, 1847, and intermediate conveyances showing the transmission of the title to the lots here in question to William B. McCartney, the descriptions in these intermediate conveyances corresponding with that in the conveyance to the appellee. In the deed from Lawson to Cheeney the land thereby conveyed was described as being part of section twenty-eight, township thirty-eight, range four west, “and bounded as follows: Beginning on the Michigan Eoad two four-pole chains from the southeast corner on the east line of said section, thence running north eighteen chains and twenty-eight links, thence west thirty-
A deed conveying land described therein by metes and bounds running to and along the road carries the fee prima facie to the center of the highway. Elliott, Roads and Sts. (2d ed.), 722; Montgomery v. Hines (1893), 134 Ind. 221, 225. This must be true with respect to the deed of conveyance to Cheeney, unless a contrary decision is required by the lines of the boundary, tracing from the beginning point specially indicated. The words “to and along the highway to the place of beginning,” “if not controlled by the_ starting point, would, by well-settled construction, carry the boundary to the center.” Kings County Fire Ins. Co. v. Stevens (1882), 87 N. Y. 287, 41 Am. Rep. 361. In that case, the land was described as beginning at a point on the south side of the highway. Here it is described as beginning at a point on the highway which is sufficiently shown to be in the highway south of the center line thereof, though the plat of that grantee’s subdivision showed the lots -on the north side of the highway, including those here in question, as extending to the center, and therefore indicated that he claimed title to the center and no further; and the appellee holding under that grantee, who platted .the land, claims to the center. We think there is nothing in the evidence thus far mentioned which necessarily overcomes the presumption that the appellee was the owner in fee simple to the center line of the highway. The introduction of the deed of conveyance to Oheeney, without tracing the title further back, seems to indicate an intention of the appellant at the trial to place some reliance upon the description therein; but the stress of the contention here relates to the question whether it should be considered
A treaty was made between certain commissioners on the part of the United States and the chiefs and warriors of the Pottawatomie tribe of Indians, near the mouth of the Mississinewa, upon the Wabash, October. 16, 1826, which was ratified February 1, 1821, by the terms of the first article of which that tribe ceded to the United States “their right to all the land within the following limits: Beginning on the Tippecanoe river, where the northern boundary of the tract ceded by the Pottawatomies to the United States by the treaty of St. Mary’s in the year of our Lord 1818, intersects the same; thence, in a direct line, to a point on Eel river, half way between the mouth of said river and Pierish’s village; thence up Eel river to Seek’s village near the head thereof; thence, in a direct line, to the mouth of a creek emptying into the St. Joseph of the Miami, near Metea’s village; thence up the St. Joseph to the boundary line between the states of Indiana and Ohio; thence south to the Miami; thence up the same to the reservation at Et. Wayne, thence, with the lines of said reservation, to the boundary established by the treaty with the Miamis in 1818; thence, with said line, to the Wabash river; thence, with the same river, to the mouth of the Tippecanoe .river; thence, with the Tippecanoe river, to the place of beginning. And said tribe also cede to the United States all their right to land within the following limits: Beginning at a point upon Lake Michigan ten miles due north of the southern extreme thereof; running thence, due east, to the land ceded by the Indians to the United States by the treaty of Chicago; thence south with the boundary thereof, ten miles; thence west to the southern extreme of Lake Michigan; thence, with the shore thereof, to the place of beginning.
“Article Two. As an evidence of the attachment which the Pottawatomie tribe feels towards the American people,
The senate of the United States, in ratifying this treaty, excepted the words in article two in italics. Proclamation of the treaty was made February 7, 1827. See Senate Doc. (vol. 35) No. 452, Indian Affairs, Lav^s and Treaties, vol. 2, p. 195; 7 Stat. at Large (Indian Treaties), 295.
By an act of congress approved March 2, 1827 (4'Stat. at Large, p. 234), it was provided: “That the General Assembly of the State of Indiana shall be, and the same are hereby, authorized to locate and make a road from Lake Michigan, by way of Indianapolis, to some convenient point on the Ohio river, agreeably to the second article of” the foregoing treaty; “and said General Assembly are hereby authorized to apply the strip of land and the sections of land, by said articles ceded to the United States, or the proceeds thereof, to the making of the same; and said grant shall be at their sole disposal.”
By an act of the General Assembly of this State approved January 24, 1828 (Acts 1828, p. 87), John McDonald, Chester Elliott and John I. Neely were appointed commissioners to survey and mark a road from Lake Michigan to
There was introduced in evidence on behalf of the appellant what purported to be notes of the survey of the road from Lake Michigan to Indianapolis by the south bend of the St. Joseph river and Eel river. These, notes indicated courses and distances for five miles, and were certified by the Auditor of State to be a full, true and complete copy of the field notes of the first five miles, beginning at Lake Michigan, of the survey of the Michigan Eoad
By an act of the General Assembly of January 13, 1830 (Acts 1830, p. Ill), it was enacted that the road surveyed and marked by John I, Neely, Chester Elliott and John McDonald from Lake Michigan to Indianapolis, in pursuance of said act of January 24, 1828, supra, “as laid down in the field notes of the second survey and route, deposited in the office of the Secretary of State be, and the same is hereby established the road which the State of Indiana is authorized to locate and make, by the second article of” the above-mentioned treaty, “and also further authorized, by an act of congress of the United States,- of the 2d of March, 1827; and said road be and the same is hereby continued, from said town of Indianapolis, along, in and upon the state road, through the town of Greensburgh, to the town of Madison, on the Ohio river, in the county of Jefferson.”
Samuel Hanna, William Polke and Abraham M’Lelland were appointed “commissioners on said road” and were directed to meet at Madison, and to proceed to examine so much of said road as lay between Madison and Greensburgh; and it was provided that if they should think that the road or any part of it could advantageously be changed, they should employ a surveyor, etc., and survey, measure, and make the changes, etc.
The Governor was again requested to correspond with “the proper authorities of the general government, and ascertain” when and how “the lands donated by the treaty and act of congress aforesaid, to the State of Indiana, to open
The commissioners were authorized and required, previously to making an absolute location of that part of the road lying between Madison and Greensburgh, “to take releases of the various individuals, through whose land said, road may run, of all damages which any such individual or individuals may sustain, in consequence of said road’s running through his, her or their land; and shall also procure their assent, together with the assent of all individual land holders, contiguous to said róad, to permit the State to take, carry away and use any stone, timber and gravel, or any necessary materials, which may be found upon their lands, to any reasonable extent, for the construction of said road.” Acts 1830, p. Ill, §8.
By an act of Eebruary 1, 1831 (Acts 1831, p. Ill), the “board of commissioners, consisting of Hanna, Polke and M’Lelland, created by the statute of January 13, 1830, was abolished, its accomplished official acts being ratified; and William Polke was appointed sole commissioner, and he was required to complete the selecting, surveying, marking and numbering of the lands mentioned in said act of 1830, and to cause five complete plats, maps and descriptions of all said lands, showing the numbers, townships, ranges, watercourses and other necessary description, including as well the lands already selected and surveyed as those thereafter to be selected and surveyed, and including also “such lands of the United States as may have been or may hereafter be selected, and sanctioned by the general government; and such plats and maps, when so made shall be forthwith deposited by said commissioner as follows, to wit: One shall be forwarded to the Secretary of the Treasury of the United States, one to each of the offices of Secretary, Auditor and Treasurer of State, and reserve one for his own use as such commissioner.” Acts 1831, supra.
The commissioner was required to offer for sale at Logansport, Oass county, in half-quarter sections, all the aforesaid lands, selected or to be selected, “in the Indian
By an act of 1831 (Acts 1831, p. 119) it was provided that the portion of the Michigan Eoad lying between Logansport, Oass county, and the county seat of St. Joseph county, at or near the southern bend of the St. Joseph river, should be cut and opened sixty-six feet wide as soon as funds were obtained by and through the sale of Michigan Eoad lands, and finished as soon as convenient thereafter, the contract commissioner being given power to make such slight changes in the location of the road as should not increase the distance; and BToah Uoble was appointed contract commissioner on said road to carry into effect the provisions of this act, and he was directed to take measures for having the whole under contract by the fourth Monday of August, 1831, provided funds should be obtained. The contract commissioner and the contractors doing the work were to be paid out of proceeds of Michigan Eoad lands.
This implies discretionary power to sell the entire half-quarter section “divided by said road running through the same.” By section twelve of 'this act it was provided that the commissioner should cause that part of the road between Logansport and Lake Michigan to be laid off in sections of one mile each, to be numbered in numerical order, one, two, three and so on, commencing at Logansport; and he was authorized to make “such alterations in said road as he may deem necessary, within the sections of land selected and surveyed for said road, and through such other lands as the road may pass; such alterations may be
Besides tbe various statutory provisions for tbe application óf tbe funds arising from tbe sale of Michigan Eoad lands, to tbe locating, opening and improving of tbe road, tbe boards doing county business in tbe counties through which tbe road passed were authorized and required by an act of February 2, 1837 (Acts 1837, p. 95), to divide tbe road into districts, and to appoint a supervisor to each district, whose duty it should be" to call out tbe inhabitants liable to work upon roads in their respective districts to work tbe road at sucb times and in sucb manner as they might deem best calculated to improve tbe road and keep it in repair, each man to woi’k upon tbe road at least two days in each year. Tbe supervisors so appointed and tbe bands so liable to work were by tbe act of February 13, 1841 (Acts 1841, p. 167), to be governed by and subject to all tbe penalties prescribed by tbe general statute of 1838 relating to roads and highways; and by a statute of January 31, 1842 (Acts 1842, p. 144), tbe boards doing county business in the several counties through which this road ran were authorized and required to place under tbe charge of tbe proper supervisors through whose dis
The appellant introduced in evidence a certificate of. the acting commissioner of the general land office, dated August 14, 1835, certified by the Auditor of State, in which the acting commissioner certified that prior to the year 1831, section thirty-one, township thirty-eight north, range four west, comprising 635.12 acres, was selected by the commissioners appointed under a law of the State of Indiana to select the lands granted by the treaty of 1826
The statement in Hamilton v. State (1886), 106 Ind. 361, cited by the appellant, that by this treaty of 1826 the Indians ceded to the United States “a strip of land 100 feet wide, commencing at Lake Michigan and extending by way of Indianapolis to the Ohio river,” etc., is not wholly accurate, though the inaccuracy does not affect the decision. There is nothing in that case indicating an
Eor the lands ceded by the first article of the treaty of 1826 a consideration.by way of a promised annuity and of goods furnished was provided in articles three and four, and the second article containing the cessions for the road expressed therefor a separate consideration; but assuming that the United States and the State of Indiana became bound to construct such a road from Lake Michigan to the Ohio river with the proceeds of the sections of land provided for such purpose, there was an obligation upon
By a joint resolution of the General Assembly, January 29, 1831 (Acts 1831, p. 189), the cause of the second survey and relocation of the road is indicated to have been the impracticability of making the road as first surveyed through the Kankakee swamps; and it was said: “Inasmuch as the location of said road, as above ceded and authorized, would -necessarily be made through the lands purchased by said treaty, by the United States, of said Pottawatomie tribe, and especially through the ten-mile purchase, named in the latter clause of the first article thereof, the southern line of which would otherwise entirely exclude the road from Lake Michigan, this General Assembly feel constrained to assert, as their right, the privilege. of locating and making said road, on the most suitable and practical route, from Lake Michigan, by way of Indianapolis, to the Ohio river, and of applying 100 feet wide of land, on which to locate the same, as well as one section of contiguous land, for the construction of the road, selecting the same, as from the location of said road, this State would be fully entitled to, from the lands so being on the route, and lying contiguous thereto, whether the same should have remained as the property
There is no evidence of any grant from the United States to the State of any strip of land 100 feet wide, in any locality, except the turning over of the cession made in the second article of the treaty to the State by the acts of congress to which we have referred. In designating the manner in which the lands donated by the treaty and the act of congress to open the road should be selected and surveyed by the commissioners appointed by the General Assembly, if the general government should refuse to. survey them, the commissioners were directed by the act of 1830 to proceed to select and survey the land “into sections, in the manner and form that the lands of the United States are surveyed and laid off.” The only section of the selection of which the appellant has been .able to furnish evidence was a section designated as in a regular congressional survey, which is situated more than two miles southwestward from the locus in quo. If the road was located in that section by the survey authorized in 1828, and adopted in 1830, and mentioned in the joint resolution of 1831, such location was changed, possibly
The appellant seeks to have declared, with reference to this particular road, a distinction, which, if allowed, would be contradictory of the presumption of the common law relative to the soil of highways.
In City of Dubuque v. Maloney (1859), 9 Iowa 450, 74 Am. Dec. 358, the government of the United States having laid out the town of Dubuque, and a person having become a purchaser of a lot adjoining one of the streets, and having received a patent from the United States therefor, it was held that he, and not the city, took the legal title to the soil to the center of the street, subject to the public easement. The court, in support of its holding, quoted the following from 3 Kent’s Comm., *433: “The established inference of law is, that a conveyance of land bounded on a public highway carries with it the fee to the center of the road, as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title in the adjoining land, is never to be presumed. It would be contrary to the universal practice.” See Cox v. Louisville, etc., R. Co. (1874), 48 Ind. 178, 188.
In Terre Haute, etc., R. Co. v. Scott (1881), 74 Ind. 29, certain lots in question were part of a tract of land donated by the United States to the State of Indiana as a site for a permanent seat of government for the State. The town of Indianapolis was laid out by the State, and included said lots, abutting on Kentucky avenue, within
Whatever may be said of the decisions of our courts relating to the rights of owners of land abutting upon the canals of this State, those decisions proceed upon constructions placed upon the statutes relating to canals; and in the case before us we have to consider other statutes.
The road here in question was surveyed, opened and established upon lands, the title to a portion of which was recognized as belonging to the Indians, while the title to other portions was in the United States or the State of Indiana, and the title to other lands was in individual proprietors, and some portions of the road were upon previously established public roads. Where it was
We find no occasion for supposing that it was not from the beginning intended that the .road should have, when opened and constructed, the character of other state roads as to the ownership of the soil of the way. It seems to have always been considered and intended that the cession of the strip 100 feet wide for a road was a cession of a public easement, through portions of sections of land as surveyed by the United States, or by the State in the usual and established manner in which the surveys of the general government were made.
There can be no dispute concerning the portion of the road between Madison and Indianapolis, and there is no indication of an intent of the legislature that the State should have a greater interest in one portion of the road than in another. As to those portions in the northern part of the State where the road was opened through lands already granted by the United States to private owners, with or without their express consent, there is no indication that a greater interest than a public easement was appropriated; and where the State owned both the road and the abutting lands, and conveyed the latter to individual purchasers, they, upon the principles of the common law recognized' generally in England and the United States, would take the fee to the middle line of the road.
The appellant, instead of introducing available evidence of the original circumstances as matters of fact, has seen fit to insist earnestly and with apparent seriousness that we should take notice judicially that the State is the owner in fee of the locus in quo because of its being, as claimed, a part of the Michigan Road; and because of this serious insistence we have taken considerable space — perhaps more than necessary — in the examination of the matter so proposed.
Judgment affirmed.