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Clellan, Ex'r, 164 Ind. 131, 73 N. E. 97; Mc came poisoned and died. The court in ConGrew v. Thayer, 24 Ind. App. 578, 57 N. E. duitt v. Ross, supra, refers to the case of Bal262. The court did find that appellant en ly v. Wells, 3 Wils. 25, and quotes: "When tered into a written contract with the gran the thing to be done, or omitted to be done, tor of appellee's lessor to fence its right of concerns the lands or estate, that is the meway before entering thereon to construct its dium which creates the privity between the road, and that the deed to appellee's lessor plaintiff and defendant." contained covenants of general warranty. Appellant argues, and it is the law, that The contract is set out in the findings. Un executory contracts to convey terminate with der the findings, our consideration is limited the execution of the deeds, and the rights to this contract, and the action of the par of the parties are to be determined by the ties thereto, as evidenced by the facts found. latter; "the presumption being that the It is argued by appellant, that the findings deeds give expression to the final purposes exhibit an executory contract and create of the parties." Flanders v. Chicago, etc., Ry. only rights in personam, and until executed Co., 51 Minn. 193, 53 N. W. 544; Turner v. there can be no rights in rem.

, . . fault to find with this argument, and if this Jackson Iron Co., 74 Mich. 183, 41 N. W. were an action wholly ex contractu, such 891, 16 Am. St. Rep. 621; Close v. Burlingargument would be exceedingly weighty, but ton, etc., Ry. Co., 64 Iowa, 149, 19 N. W. 886. for reasons hereinafter appearing, the theory But, where the parties are proceeding under of appellant is not controlling. The agree such executory contract containing a covement to fence, in the very nature of things, nant evidently for the benefit of the remainhad reference to and is in many essential ing portion of the land, and no deed having elements a real covenant. It is the usual been executed in the performance of such covenant contained in grants to railway com contract, it would seem to us that its provipanies for rights of way and construed by sions, under all the facts in this case, should courts as covenants running with the land. and do extend to cover the damages sought It contained no stipulation to make it purely to be recovered by this action. Elliott, in personal. Such covenants may be with re his work on Railroads (section 1188) says: spect to the interest in lands granted, or it "Where a railway company obtains a right of may be in the interest of that portion not way through a farm, and in consideration granted or the lands adjacent thereto, de of the grant of such right of way, agrees pending upon the reasonable intent of the to erect and maintain secure fences, it is parties as expressed in the contract. Con bound to pay for animals killed and injured duitt v. Ross, 102 Ind. 166, 26 N. E. 198. by its trains in cases where the animals The stipulation in the contract to fence plac come upon the track through the fault of ed that duty upon appellant, and was in the company in failing to erect fences accordpart the consideration for the proposed grant, ing to the terms of its contract. Such agreeand looking to the object and purpose of this ments, when recited in the condemnation feature of the agreement, it will be readily proceedings or the instrument by which the seen, that the interest intended to be bene railway company obtains its right, are charfited thereby was the unsold portion of the ges which run with the land, and are bindland, in the way of keeping animals off of ing upon the company, even after the landappellant's right of way and away from dan owner has conveyed to subsequent grantees." ger.

In Gulf, etc., R. Co. v. Washington, 49 Fed. The special findings exhibit a valid con 347, 1 C. C. A. 286, where damages were tract, founded upon a valuable consideration sought for cattle killed, it was held that and in full force and effect. Its object is "when a railroad company enters into a conclear. The intention of the parties to be tract with a landowner to fence its track thereby accomplished is plain. While in through his premises for the protection of terms it is executory, yet nevertheless it was his stock, such a contract is obligatory on the authority by which appellant entered the railroad company as a statute requiring into possession of the land and began and it to fence its track, and, so far as relates continued the construction of its road. By to the question of the liability of the railsuch possession and acts it must be held to road company for stock killed by reason of have assumed all the burdens imposed by its breach of such duty, it is precisely what the authority under which it was acting. it is when the obligation to fence is imposed One of these burdens, that of building a by statute." The case of Louisville, etc., R. fence along the east line of its right of Co. v. Sumner, 106 Ind. 55, 5 N. E. 404, 55 way, by the contract is made a condition pre Am. Rep. 719, was an action to recover damcedent to its possession for any purpose, but, ages for hogs killed, as well as other items in violation of such stipulation, it proceeded of damages, occasioned by the neglect of the to construct its road over the land describ company to build a fence along its right ed in the contract and deposited thereon and of way in violation of a recital in its deed, exposed poisonous substances, which by rea that such conveyance was made upon the son of its neglect to fence, became and were consideration that $200 was paid, and upon accessible to appellee's cow, and from which the further consideration that the grantee poisonous substances she ate and thereby be covenanted * * "to fence said strip,”

held, that "it must be supposed that the defendant knew, when it made the contract, and in pursuance thereof exposed the plaintiff's farm to injury by throwing the fields open to the public and rendering it hazardous to allow his own animals to pasture where they would be exposed to destruction by defendant's trains, that special damages would result. Such damages must, therefore, have been within the reasonable contemplation of the parties when the contract was made. That the duty which the railroad company owed arose by contract, did not make the rule for the assessment of damages different from what it would have been if the duty to fence had been imposed by statute." In Toledo, etc., R. R. Co. v. Burgan, supra, the landowner executed a deed to the railroad company, and on the same day, by an extraneous contract, the company agreed to fence the right of way so conveyed to it “within a reasonable time," and this court in that case said: “The gravamen of the action is to recover damages for injuries sustained by appellee, as tenant of the landowner, on account of the failure of appellant to discharge the duties imposed on it by the contract mentioned and set out in the complaint. * The duty of the company was a continuing one, running with the land.

It is not contraverted but that the tenant had the same right of action, if any, that the landowner would have had under the same circumstances." In our opinion the court did not err in its conclusion of law.

3. Appellant also insists that the trial court erred in overruling its motion for a new trial. What we have heretofore said in passing on other questions here presented disposes of all the questions arising and presented by appellant in support of this assignment.

Judgment affirmed.

plaintiff by a warranty deed, excepting the 50 acres "off the south end thereof," previously conveyed to defendant. Held, that the 50 acres conveyed to defendant by plaintiff's grantor was not exclusive of the railroad right of way, but included it. 3. BOUNDARIES-SUBVEY-EFFECT.

Where the line between adjoining land owners was established by the county surveyor after due notice, and the parties therein accepted and acted on the line by constructing a wire fence thereon, such survey, not appealed from, was prima facie evidence of the correctness of the corners so established and of the division line.

[Ed. Note.—For cases in point, see vol. 8, Cent. Dig. Boundaries, 88 268-274.)

Appeal from Superior Court, Grant Coun. ty; B. F. Harness, Judge.

Action by Charles Robinson and others against Mary L. Korporal and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. E. Steele, Simons & Childs, and T. B. Dicken, for appellants. St. John & Charles, for appellees.

(38 Ind. App. 110) KORPORAL et al. v. ROBINSON et al. (No.

5,638.) (Appellate Court of Indiana, Division No. 1.

May 29, 1906.) 1. APPEAL-ASSIGNMENTS OF ERROR-WAIVEB -RULES-FAILURE TO COMPLY.

An assignment of error to the overruling of defendant's motion for a new trial was waived by defendant's failure to comply with Supreme Court Rule 22, cl. 5 (55 N. E. vi), specifying the form of appellant's brief. 2. DEEDS CONSTRUCTION PROPERTY CONVEYED.

Defendant and certain other heirs released and quitclaimed to a railroad company, for a consideration of $1, an 80-foot strip across certain land; the deed providing that the land so granted should be used for the construction and maintaining of a railroad and appurtenances, The railroad took possession of such strip off the south end of the track, on which it constructed and maintained a railroad. The tract was subsequently acquired by plaintiff's grantor, who conveyed to defendant 50 acres, of equal width throughout, off the south end of the tract, containing 98 acres more or less, after wbicb the entire tract was conveyed to

MYERS, J. This is an action by appellees against appellants to quiet title, and in ejectment, and for damages for the wrongful detention of a strip of land 80 feet wide. The complaint is in two paragraphs, and a general denial to each formed the issues. Trial. Finding and judgment for appellees, quieting their title to the land in dispute, that they have immediate possession of the same, and recover of appellants $25 damages.

Overruling appellants' motion for a new trial is the only error assigned. Appellants have waived this error by failing to comply with rule 22, cl. 5 (55 N. E. vi), of the Supreme and this court. Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183; Security, etc., Ass'n v. Lee, 160 Ind. 249, 66 N. E. 745; Boseker V. Chamberlain, 160 Ind. 114, 118, 66 N. E. 448; Rush, Adm'r, v. Kelley, 34 Ind. App. 449, 455, 73 N. E. 130. However, as appellees are not insisting on this advantage, and to some extent have supplied certain omissions in appellants' brief, the controlling question in this case may be considered.

From the record and briefs in this case we learn that on September 4, 1894, Patrick Kiley became the owner of the following real estate in Grant county, Ind., to wit: The E. 12 of the N. W. 14, and 18 acres off of the west side of the N. E. 14, all in section 16, township 25, range 9 E. On September 12, 1894, Patrick Kiley and his wife conveyed by quitclaim deed to the appellant Mary L. Korporal a part of said land described as follows: “Fifty acres of equal width throughout off of the south end of the following described real estate, to wit: The east half of the northwest quarter, and eighteen acres off of the west side of the northeast quarter, all in section 16, township 25 north, range 9 east, containing in both tracts ninety-eight acres, more or less." On May 19, 1880, appellant Mary L Korporal was the

owner of an undivided interest in said real tracts therein described. Condit v. Maxwell, estate first above described, and on that 142 Mo. 266, 44 S. W. 467; Arlington Mill & date she and her husband, Anthony Korporal, Elev. Co. v. Yates, 57 Neb. 286, 77 N. W. 677; joined with all the other owners of said Nidever V. Ayers, 83 Cal. 39, 23 Pac. 192; land in a release and quitclaim deed to the Montgomery v. McCumber, 128 Ind. 374, 377, Frankfort, St. Louis & Toledo Railway Com 27 N. E. 1114. In the case last cited it is pany, for "a strip of land forty feet wide on said: "The quitclaim deed only passes the each side of the center of said railroad track, title held by the grantor at the time of the as the same shall be finally located over and conveyance"-citing authorities. across the following described land, to wit." There is no claim of fraud or deception After describing certain lands, including the anywhere in this transaction, and each of land described in the Kiley deed, there is the parties to this action is claiming title this proviso: "Provided, however, that the through the same source. It is agreed that lands hereby granted shall be used for the that part of the 98-acre tract, including the purpose of constructing thereon and main strip occupied by the railway company, and taining a railroad and appurtenances there south of the line so established by the counto.” The consideration stated in this deed ty surveyor, contains 50 acres. This being being $1. Said railroad company accepted true, and applying the law, as we understand said deed and took possession of an 80-foot it, to the facts here exhibited, it is unnecesstrip of land off of the south end of said sary, in the decision of this cause, for us 98-acre tract, and constructed a railroad, and to determine the character of the title held have ever since maintained a railroad there by the railway company. At the time Mrs. on. On March 8, 1899, Kiley, by warranty Korporal received her deed from Kiley, the deed, conveyed to appellees said 98-:acre tract, railway company had constructed and was “excepting therefrom, however, 50 acres of operating its railroad over that portion of equal width throughout off of the south end the 98-acre tract by virtue of an instrument of the above-described real estate, the same in writing, to which appellants were parties, being heretofore deeded to Mary L. Korpo and which instrument was duly recorded in ral." The record further shows that in about the record of deeds of Grant county. The two years after the deed was executed from very form of her deed was sufficient to put Kiley to Mrs. Korporal, an attempt was her upon inquiry as to the character of the made to determine the north boundary line of title she was thereby receiving, and of itself the 50-acre tract, and certain measurements notice that she was getting only a doubtful were made, and a fence constructed on what title. Meikel v. Borders, 129 Ind. 529, 533, was then supposed to be her north line. 29 N. E. 29; Smith v. Rudd, 48 Kan. 296, , Prior to May 1, 1902, this line again became a 29 Pac. 310; Wright v. Tichenor, 104 Ind. subject of question, and at the request of 185, 3 N. E. 853. The facts in this case appellees, and after the statutory notice also show that the line between the land had been given appellant Mary L. Korporal, of Mrs. Korporal and appellees was estaband pursuant to such notice on May 1, 1902, lished by the county surveyor of Grant counthe county surveyor of Grant county pro ty after due notice to appellant Mrs. Korpoceeded to make a survey of said lands, and ral. The parties to this action accepted and then and there established the corners and acted upon the line so established by building line dividing the land of appellants and the a wire fence thereon. This survey stands land of appellees. Thereafter, and on the unappealed from and in full force and effect, line thus established by the county surveyor, and must be taken at least as prima facie a wire partition fence was constructed, ap evidence of the correctness of the corners pellants building the east half and appellees so established, as well as the boundary line the west half, and possession of the lands between their lands. Main v. Killinger, 90 was accordingly taken, by the parties as Ind. 163; Waltman v. Rund, 109 Ind. 366, thus divided. About one year after the 10 N. E. 117; Sinn V. King, 131 Ind. 183, building of this fence, and in the nighttime, 31 N. E. 48; Hunter v Eichel, 100 Ind. 463. and prior to the bringing of this action, ap It is true in this action appellees must repellants moved the fence last constructed cover upon the strength of their own title. north 80 feet, and took possession of said The uncontradicted facts show that appellees, 80-foot strip of land, to the exclusion of by virtue of their warranty deed from Kiley, appellees. Appellants argue that the 80-foot became, and were at the time of the comstrip of land, occupied by the railway com mencement of this action, the owners in fee pany, ought not to be considered as a part of simple of the entire 98-acre tract, except 50 the 50-acre tract conveyed to Mrs. Korporal acres off of the south end thereof, theretoby Kiley, as was done by the surveyor. In fore conveyed to Mrs. Korporal, and taking our opinion appellants' contention is errone the north line of the 50-acre tract, as located ous. The deed of Kiley to Mrs. Korporal by the county surveyor, as being prima facie contained no covenants of warranty. It in correct, and, it being admitted that the land no manner refers to the land occupied by the in controversy lies north of this line, in our railway company. By it Kiley conveyed only opinion the facts and the law are with the such title and interest as he then had in appellees. the 50 acres off of the south end of the Judgment affirmed.

(38 Ind. App. 202)

their lands, and these empty Into said small MINDNICH et al. v. KLINE et al. (NO streams and ditches. All of the lands have 5,781.)

rich soil, and produce corn, wheat, oats, (Appellate Court of Indiana, Division No. 1. and grass. The appellants are the owners June 6, 1906.)

of certain lands lying on the north and WATERS AND WATER COURSES-OBSTRUCTION

south sides of the river, and extending across OF STREAM-ESTABLISHMENT OF DRAIN. it, and including an island, below the lands

The mere establishment of a drain along of the appellees. The island is located in the north side of a river, and through the channel on that side between the shore and

the river opposite the other lands of the apan island, which did not change the character pellants, and is about 50 yards wide and 150 of the place as a channel of the river, gives yards long. At the island the channel of no right to erect a dam between the island and

the river divides into a south branch and a the south shore of the river, to the damage of riparian lands above.

north branch; the former channel being about

75 feet wide running along the south side of Appeal from Circuit Court, Wabash Coun

the island, and the north branch being a ty; A. H. Plummer, Judge.

channel about 30 feet wide running along the Action by Mary E. Kline and another north side of the island. From time im against Martin Mindnich and another, Judg memorial both of these branches have been, ment for plaintiffs. Defendants appeal. Af

and they now are, natural water courses, firmed.

and parts of the river, with natural and wellSpencer & Branyan and Geo. F. Felts, for defined channels and beds and banks, and appellants. Jno. Q. Cline, Claude , Cline, necessary to hold, contain, and convey the and S. E. Cook, for appellees.

water which naturally flows in the river

and passes at that place. BLACK, J. This was a suit brought by

July 1, 1883, one Branstrater and others the appellees against the appellants for dam

filed a petition under the drainage laws of ages because of the construction of two cer this state, in the superior court of Allen tain dams in the Little Wabash river, for the

county, for the location and construction of abatement of the obstructions, and for a

a ditch or drain in and along the Little decree pereptually enjoining the appellants

Wabash river, and such proceedings were from so obstructing the river. The facts are

had in that court in said cause that a ditch shown by a special finding:

or drain was established and afterward conThe appellee Mary E. Kline, was the owner structed in and along the river from a point in fee simple of certain described real es in Allen county to a point in Huntington tate in Huntington county, being 107 acres county about two miles below and down bordering the south side of said river, less stream from these lands of the appellees and than one-half mile above, or up the stream, the appellants. The bed of the river at and from the lands of the appellants hereinafter along the lands of the appellees and the apmentioned. The appellee Bridget Roche was pellants, and in both of the channels at the the owner in fee simple of certain other island, and for two miles below it, was and lands, being 80 acres bordering the south is composed of limestone rock. It was proside of the river, likewise less than one-halt vided in said proceedings that the ditch mile above the lands of the appellants. From should be about 30 feet wide in the bottom time immemorial the Little Wabash river and about 40 feet wide at the top, at and has been, and it still is, a natural water along this island, and the ditch was concourse, extending from a point five or six structed of such width at that point. It was miles southwest of the city of Ft. Wayne, located along the north bank of the river Allen county, in a southwestern direction for a mile or more below the island, and at through that county and Huntington county, the island it was continued along the north and along and through the lands of appellees bank and in and along said north channel; and the appellants, until it empties into the and after its construction there remained Wabash river at a point about two miles over 75 feet of the old channel of the river southwest of the city of Huntington. The for a mile below the island, and at the island Little Wabash river always has been, and said south channel was left open and unobis, a stream and water course with a natural, structed, and the remainder of the naturel distinct, and well-defined channel, with nat channel below the island, as well as all of ural bed and banks from its head to its the channel on the south side of the island, mouth. Along the lands of the appellees was and is required and necessary to hold, and of the appellants, as well as at other carry, and convey the water which naturally places above and below them, the river is collects and flows in the river at that place. from 125 to 150 feet wide. The lands of the The judgment of the superior court of Allen appellees are level and flat, and they re county does not limit the river to said artiquire drainage, and the river is the only ficial ditch; but “it was the intention of said outlet for the drainage thereof. A number court that said old channel above and below of small streams and ditches pass through said island should be left open and unobtbem and empty into the river, and the appel structed, and that all of said old channel on lees have constructed numerous lateral open the south side of said island should remain ditches and tile drains for the drainage of open and unobstructed and as a part of said

river, and that the object of said proceedings ditches on the lands of the appellees, and in said court was to enlarge said river at the water backs therein and thus destroys said island and at other points above and the outlet for said lateral drains. It was below the same.” The lands of the appel- found that the water backing up and floodlees and of the appellants were assessed ing these lands had damaged grass, wheat for the construction of said artificial ditch, and corn on the land of the appellee Kline For several years after the construction of of the value of $10 and on the land of the the artificial ditch the old channel on the appellee Roche of the same value. The south side of the island remained open court stated as conclusions of law that the and unobstructed, as a part of the river, aad appellants had no right to construct and was used to hold and carry the water passing maintain the dam in the south channel of the in the river at that place.

river; that the construction and mainteAfter the construction of the artificial nance thereof constituted a nuisance, and the ditch, the appellant Mindnich became the appellees were entitled to have the same reowner of the island and the other land to the moved and abated within 90 days, and to north and south of it bordering on the have judgment against the appellants, the river, and thereafter he opened up a stone appellee Kline for $10, and the appellee quarry in the river, in the bed of the channel Roche for the same amount; also, that the south of the island and opposite the lower appellants should be perpetually enjoined end thereof. He also entered the river and from obstructing the south channel of the constructed a permanent dam across the river at the island, and that the appellees south channel at the east or upper end of the should recover their costs. island and at the west or lower end there The court's conclusions seem so satisfactoof. These dams were constructed of stone ry and necessary, as being in accordance and dirt and other materials; the upper one with principles firmly established and well extending from the upper end of the island understood, that there would be no occasion to the south bank of the river, a distance for discussion but for the claim on the part of about 75 or 80 feet, and being from six to of the appellants that as a result of the seven feet high and completely closing up proceedings and judgment in the drainage the south channel, so that the natural flow proceeding in the Allen superior court the of the water of the river cannot pass through south channel closed up by dams should be that channel, and the lower dam extends

regarded as no longer being a portion of the from the lower end of the island to the south river, and that the intervening space between bank of the river, and both of the dams are the island and the south shore of the river, as high as the banks of the river at said inclosed between the two dams, should be points. The dams were constructed by Mind treated as land reclaimed through the drainnich for the purpose of keeping out of the age proceeding. This claim on the part of south channel water that would naturally the appellants cannot be sustained. Leaving pass through it, and of preventing such out of consideration all of the finding which water from passing through it, in order that may be said to constitute conclusions of law, he might operate the stone quarry in the bed there are sufficient facts to show that the of the river. Afterward the other appel portion of the river in question was not lant, the Huntington Consolidated Lime Com obliterated or superseded or deprived of its pany, purchased an interest in the stone quar character as a natural water course by the ry and the land above mentioned, and both drainage proceeding. It existed as such of the appellants have since been maintain when the appellants became landowners in ing and from time to time enlarging the dams. that locality, and when for their own priBy the construction and maintenance of the vate gain they constructed the obstructions, dams the appellants have reduced and taken which constituted a nuisance, being an inaway one-half of the size of the natural capac terference with the comfortable enjoyment ity of the river at the island. The artificial of the lands of the appellees, which the court ditch on the north side of the island is whol below rightly would not tolerate when its ly insufficient to hold and to carry the water aid was properly invoked. Certainly it apwhich must pass at that point. The dams peared from the findings that the dams were obstruct, greatly impede, and check the nat erected in and across a place where the river ural flow of the water and the current of had immemorially flowed as a natural wathe river at the island, and cause the water ter course, and the drainage proceedings to congest, accumulate, and heap up at and shown in the findings do not appear therein above that point, by reason whereof the wa. to have changed the character of the place ter of the river above the island is caused to as a channel of such a stream and part of a rise above the banks thereof, and it spreads river, whose waters the appellants had no over the lands and fields of the appellees | right by their obstructions to cause to overand floods and overflows the same, and is flow the lands of the upper proprietors. caused to stand and remain on said lands Those proceedings, as appearing in the speand fields, and thus to damage and destroy cial finding, constituted no sufficient defense the wheat, grass, and corn of the appellees, for the acts of the appellants shown by the and the water in the river is caused to rise findings. above the level of said small streams and Judgment affirmed.

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