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[6] The notes were held in trust by the CALDWELL, C. J. Appellee brought this bank for the owner. The funds were needed action against appellants to quiet its title, to pay the depositors, and were taken for alleged to be in fee simple, to a certain parthat purpose in the process of liquidation.cel of real estate situated in the block and The suit was not begun until July, 1912, and bounded by Chestnut, Morris, Wenzel (now the auditor took charge of the bank on No- Delaware), and Hanway (now Downey) vember 3, 1911. This is a suit for conver- streets in the city of Indianapolis. The tract sion. Under the statute aforesaid the notes as described in the complaint is an irregular were rightly taken to pay the depositors, be- quadrilateral, situated in the southwest corcause the assets of the bank were insufficient ner of the block, being within the northeas: to pay them in full, even after including in angle formed by the intersection of Chestnut the assets the proceeds of the notes in con- and Downey streets, the latter forming its troversy. There can be no conversion where southern and the former its western boundproperty is rightfully taken in pursuance of ary. The errors relied upon are based in law. Bixel v. Bixel, 107 Ind. 534, 8 N. E. appellant's exceptions reserved to the con614; Clegg v. Baumberger, 110 Ind. 536, 9 N. clusions of law. The first conclusion is in efE. 700.

fect that appellee is the owner in fee simple [7,8] The ultimate result reached by the of the tract of land described in such contrial court was right. Where this is the clusion, the boundaries of which are not case erroneous reasons given for such con- identical with the boundaries of the tract declusion or intervening errors that deprived scribed in the complaint. The former exthe complaining party of no substantial right cludes a triangular parcel of ground includafford no ground for reversal of the judg.ed in the latter, situated in the extreme ment Lake Shore, etc., R. Co. v. Myers, 52 southwest corner of the block, while the eastInd. App. 59, 74, 98 N. E, 654, 100 N. E. 313;ern line of the former does not exactly coinOlds v. Lochner, 57 Ind. App. 269, 106 N. E.cide with the eastern line of the latter. The 889; sections 407, 700, Burns 1914.

remaining conclusion is, in substance, that In reaching this conclusion we are not appellee is entitled to recover costs. The called upon to determine, and do not decide, decree follows the conclusions. Appellants what, if any, right of action appellant may in their brief clearly outline the scope of the have against the bank in some appropriate controversy submitted for our consideration, suit.

as follows: Judgment affirmed.

“There is but one question presented by this

appeal. That question is whether, under the (63 Ind. App. 156)

facts specially found by the court, the appellee MEYER et al. v. PITTSBURGH, C., C. & ST. by its tracks with proper clearance, or acquired

acquired a fee-simple title to the lands covered L. RY. CO. (No. 9171.) *

but an easement." (Appellate Court of Indiana, Division No. 2.

We proceed to consider such question. The June 8, 1916.)

finding to the extent necessary to a determi. 1. EASEMENTS 1-FEE SIMPLE.

nation of such question is substantially as A fee may exist in an easement. [Ed. Note. For other cases, see Easements, follows: By an act of the General Assembly Cent. Dig. 88 1, 2, 5–7; Dec. Dig. 1.)

of the state of Indiana, approved February 2, 2. RAILROADS Om69_RIGHT OF WAY-TITLE 1832, the Madison, Indianapolis & Lafayette BY PRESCRIPTION-EXTENT OF TITLE. Railroad Company was created. In 1866, its

A prescriptive title to land by use for rail successor, the Indianapolis & Madison Railway purposes is only a right of way easement, although the charter of the predecessor, of a road Company, consolidated with the Jefferrailroad company claiming title by prescription, sonville kailroad Company, under the name provides that when it shall have procured its of the Jeffersonville, Madison & Indianapolis right of way it shall be seised in fee simple of Railroad Company. The latter, June 10, the right to use such land, since this did not affect the company's right to take a grant of a 1890, consolidated with certain other comlesser estate, and hence does not affect the pre- panies, thus forming appellee. Prior to sumption of no greater grant than necessary October 9, 1890, the Jeffersonville, Madison & to protect the use made. [Ed. Note.-For other cases, see Railroads, of its predecessors in title, entered upon and

Indianapolis Railroad Company, or some one Cent. Dig. $$ 161-165; Dec. Dig. 69.] Appeal from Circuit Court, Marion Coun- the parcel of land described in the com

extended in a northwestern direction across ty; Charles Remster, Judge. Suit by the Pittsburgh, Cincinnati, Chicago with a side track paralleling it on either

plaint a railroad, consisting of a main track & St. Louis Railway Company against side, which tracks have been continuously August B. Meyer and others. From a decree maintained on such parcel of land and used for complainant, defendants appeal. Re

for rạilroad purposes by such entering comversed.

pany, and its successors in title, including Smith, Hornbrook & Smith, of Indian- appellee to the present time. Rights acapolis, for appellants. Samuel 0. Pickens quired in such parcel of ground by virtue of and Owen Pickens, both of Indianapolis, for the extension, maintenance, and use o appellee.

such railroad tracks thereon passed to such

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied. Transfer denied.

succeeding and consolidated companies in respecting the parcel of ground described in succession, including appellee. On said Octo-the conclusion and decree: ber 9, 1890, McCarty and others were the That is, “has been in the possession of and used owners of the south part of the block bound- and occupied by the plaintiff in the operation of ed by the streets aforesaid, including the said railroad and by its embankment and tracks

laid thereon for more than 20 years prior to the tract of land as described in the complaint, bringing of this action, and such use and posand as described in the conclusions and de- session by the plaintiff thereof has been continucree, subject, however, to the rights of the ous, open, notorious, and adverse to the claim

or

interest therein of any owner thereof for more Jeffersonville, Madison & Indianapolis Rail-than 20 years prior to the commencement of this road Company, and its assigns therein. On action." said day such owners conveyed the entire

The parties apparently agree that the findtract so owned by them to Elder. In 1892, Elder conveyed to Fahnley & McCrea, who ing discloses an adverse occupancy of the on November 11, 1901, conveyed to appellants. parcel of land described in the decree for Each of the deeds by which the successive and purposes stated in the finding. They difconveyances from McCarty to appellants

fer, however, respecting the nature to the were accomplished was duly recorded, and right or title that exists in appellee by reacontained a clause excepting from its opera-son of such occupancy. Appellee contends tion the rights of the railroad company and that through such use and occupancy, it is its assigns as aforesaid. Facts are specifical-seised in fee of such lands. It is appellants' ly found respecting the boundaries of the position, however, that such occupancy has parcel of land in said block, which such rail- been limited to certain specific uses and purroad companies in succession have continu

poses, and that by reason thereof appellee ously occupied and used in the operation and has acquired in such lands an interest in the maintenance of such railroad, and for prop-nature of an easement or a prescriptive right er railroad purposes in connection therewith, merely to 'hold and use such lands for the the parcel of ground so outlined being the purpose of maintaining and operating its same as that described in the conclusions and railroad thereon and proper railroad purdecree. While Fahnley & McCrea were the poses incident thereto, subject to which title owners of the tract, formerly owned by Mc-in fee is in appellants. We are not specificalCarty, the board of public works of Indian- ly advised by the finding as to the company apolis placed against it by proper proceeding with which originated the possession and ocan assessment, amounting to $520.50, for con- cupancy of such parcel of ground continued structing a public sewer along Downey through a number of intermediate and constreet. Fahnley & McCrea, as owners, signed stituent companies to appellee. The finding the waiver authorized by the statute, and on this subject is that some time prior to thereafter, prior to conveying the tract to October 9, 1890, the Jeffersonville, Madison & appellants, paid the assessment in full. Ap- Indianapolis Railroad Company, or some one pellants, after the conveyance of the tract to of its predecessors in title, entered upon such them in 1901, paid the taxes and municipal lands and constructed a railroad. The Genassessments against it as they arose, except eral Assembly, by an act approved February that in September, 1910, appellee paid an 1, 1834, changed the name of the Madison, assessment levied in its name in the sum Indianapolis & Lafayette Company to the of $525.19 for the construction of a sidewalk Madison & Indianapolis Railroad Company. along the east side of Chestnut street, of Acts 1834, p. 244. The parties agree that unwhich assessment and its payment by appel- der the latter name, the company in 1817 exlee appellants had no notice prior to the tended its line to and into the city of Inbringing of this action. In 1913, preparatory dianapolis, and that in so doing it entered to the execution of a purpose to elevate its upon the lands involved here, and located tracks, appellee entered into negotiations and constructed its track over the same, and with appellants for the purchase and to pro- that the rights acquired by it and its succescure the conveyance to it by appellants of the sors, including appellee, in continuing the lands described in the complaint. Thereupon, occupancy of said lands must be measured by at appellee's invitation, appellants submitted the rights that the entering company would in writing a proposition to sell and convey to have acquired under the same circumstances appellee. Appellee received and retained had the latter, rather than its successors, such proposition without response, and such continued such occupancy and use as set out negotiations terminated and failed. Several in the finding. As measuring the hypothetidays after such proposition was submitted, at cal rights of the entering company under the a meeting before the board of public works of supposition aforesaid, and consequently the Indianapolis, appellee by attorney asserted a rights of appellee, and to sustain their reclaim to the ownership of the lands describ- spective contentions, the parties appeal to ed in the complaint. Tois was appellants' the said act of 1832 (Acts 1832, p. 81), by first knowledge that appellee claimed to own the provisions of which the Madison, Indianthe lands, except such knowledge as is im- apolis & Lafayette Railroad Company, predeplied from the use of the lands as aforesaid. cessor of the Madison & Indianapolis ComThere is included in the finding the following pany, was created. To the end indicated, ap

pellee points particularly to section 19 of such act, which is as follows: “That when said corporation shall have procured the right of way as herein provided, they shall be seised in fee simple of the right to use such land, and shall have the sole use and occupancy of the same ; and no person * * * shall in any way interfere with, molest, disturb or injure any of the rights and privileges hereby granted, or that could be calculated to detract from or affect the profits of such corporation.” By reason of the reference in section 19 to other provisions of the act, an examination of certain other sections is necessary to a proper understanding of Section 19. Thus section 14 authorized the corporation to enter on any lands, to make surveys and estimates for the purpose of locating its tracks. Section 15 declared it to be lawful for the corporation to obtain, by relinquishment in Writing duly executed, the lands necessary for the Construction and location of its road, and to receive by donations, gifts, grants, and bequests, made in Writing as aforesaid, land, money, materials, etc., for the benefit of the corporation. Section 16 provided that in case any land needed for right of way purposes could not be obtained by relinquishment or where a contract could not be made between the parties, such lands might be acquired for the purposes aforesaid by condemnation under the right of eminent domain, a proceeding to that end being outlined. It Will thus be observed that the act of 1832 makes provision for but two ways in Which the railroad Company might acquire a right of way, namely, by relinquishment and by condemnation. Section 19 does not literally provide that where right of way was procured by either of such methods, the lands covered by such right of way should be held and owned by the corporation in fee simple. The language is that the corporation “shall be seised in fee simple of the right to such lands.” Literally construed, the language used seems to refer to a right in the land as distinguished from the land itself. “A fee may exist in all estates in land; therefore a fee may exist in an easement.” Branson v. Studabaker, 133 Ind. 147, 33 N. E. 98. The provisions that immediately follow are in harmony with such a construction, in that there are stipulations respecting exclusive use and occupancy and noninterference by others with the rights and privileges granted. It Would seem that if the title acquired were a fee simple, such added safeguards would follow as incidents of the fee, although not provided by express stipulation. However, the question of the title acquired by relinquishment or condemnation under the act is not an open one. Thus sections 15, 16, and 19 of the act of 1846 (Local Laws 1846, p. 210, et seq.), by which the Peru & Indianapolis Railroad Company was created, are practically the same in effect as sections 15, 16, and 19 of the act of 1832. Sections 15 and 16 of the

former authorized the created corporation to acquire lands for right of way purposes by release, and by condemnation where a voluntary release could not be obtained. Sectiofa 19 of the act of 1846, in so far as concerns the questions involved here, is identical with section 19 of the act of 1832. In Newcastle, etc., Co. v. Peru, etc., Co., 3 Ind. 464, it was held that where the created company proceeded by release or Condemnation under the act of 1846, it acquired the lands by title in fee simple, the court saying, respecting section 19: “We think it simply intended as declaratory of the effect which the releases and condemnation of lands spoken of in the fifteenth and sixteenth sections should have ; that is, whether they should be taken to convey an easement, a right of way merely, or a fee-simple title, and declaring that it should be the latter.” Newcastle, etc., Co. v. Peru, etc., Co., Supra, is recognized in Cleveland, etc., Co. W. Coburn, 91 Ind. 557, as decisive of the construction of section 19 involved in the former. In the Coburn Case, the Court Was required to construe and determine the scope of Section 21 of the act of 1848 (Local Laws of 1848, p. 182) creating the Indianapolis & Bellefontaine Railroad Company, which Section is identical With section 19 of the act of 1832, the latter, as we have said, being identical in legal effect with section 19 of the act of 1846, construed in the Newcastle Case. In the Coburn Case, the Court speaks Of the language of Section 21 as being SOmewhat obscure, and that, had it not been judicially construed by the Newcastle Case, it might be supposed to mean that the railroad company should be the owner of the right relinquished— “which might be a fee or a less estate, or a mere easement, according to the terms of the written relinquishment.” Respecting the construction placed on the corresponding section by the Newcastle Case, the court say: “Under this construction, an unconditional relinquishment of the land undoubtedly would have vested in the railroad company the absolute fee simple of the land, but the statute under consideration cannot be held to impair the right to make contracts.” The court, in recognition of the right of the railroad company to accept by contract a conditional relinquishment or a conveyance of a right in lands less in quantity than a fee, say, in substance, that if the company could not procure an unconditional relinquishment, it was not required to accept a relinquishment coupled with conditions, but they might proceed by condemnation to acquire a fee, but that if it did accept a conditional relinquishment, such conditions, if precedent, must be performed in order that title might be complete, or that a failure to perform them, if subsequent, might defeat the estate relinquished. In that case lands were relinquished for right of way purposes, by written instrument held to create, not an estate in fee simple, but an estate upon con

dition subsequent. The Coburn Case may (Acts 1835, p. 25; Acts 1836, p. 6), construed have an important bearing here, in that it in pari materia, it is held that the state by holds that where the charter or the creating appropriation proceedings, under the power and enabling act of a railroad company au- of eminent domain, acquired the appropriatthorizes it to acquire lands by specified meth-ed lands in fee rather than an easement ods for right of way purposes, and provides therein. Waterworks Co. v. Burkhart, 41 that lands acquired by such methods shall Ind. 364. In recognition of the fact that be held and owned in fee simple, such pro- title to the lands in fee is an interest or esvisions of the charter or creating act, not tate therein in excess of the requirements of being exclusive in character, do not destroy the public purpose involved, the Supreme or prohibit the exercise of the common-law Court, in Indianapolis Water Company v. power to contract. Cincinnati, etc., Co. v. Kingan Co., 155 Ind. 476, 58 N. E. 715, cites Geisel, 119 Ind. 77, 21 N. E. 470, also is in- a list of decisions, to the effect that while structive. That case involved the question the courts have abided by the decision in the of whether a deed of release and quitclaim, Burkhart Case as a rule of property, yet containing special provisions, executed to that it has been reluctantly followed, and appellant's predecessors, conveyed the de- ! that the Supreme Courtscribed lands in fee, or merely created there. "has declared its unwillingness to extend the in an easement for right of way purposes. doctrine by construction beyond the cases in The court in holding that only an easement board's exercise of the power of eminent do

which the state's grantee claims under the was created, say:

main." "We do not think the question before us is affected by the provisions of the charter of ap

Thus, in Brookville, etc., Co. v. Butler, 91 pellant's grantor, for here the right is founded Ind. 134, 46 Am. Rep. 580, the state, under entirely upon contract, and not upon proceed the Public Improvement Act of 1836, had apings under the right of eminent domain. The propriated lands for canal purposes. The question is not, what estate might have been acquired, but what estate did the one party bar. canal had been constructed in such a manner gain for and the other convey? It does not fol- that at one point it overflowed a tract of low low that because a railroad company may take land forming a pond. In a suit involving an estate in fee or a right of way of defined the fee to the overflowed lands, commenced width, it does take such an estate or such a right of way, for parties may, by their contract, create after such flowage had continued more than a less estate than a fee, or a right less in extent 20 years, it was held that while by the apthan that which the law authorizes the grantee propriation proceedings, the state had acquirto acquire.”

ed, and that it had transmitted to its gran[1] It would therefore seem to follow that tees title in fee to the land occupied by the while prescription creates the presumption of canal and its appurtenances, yet (quoting a grant, a grant of the corpus of the land from the Kingan Case, supra, which reviews in fee simple is not necessarily presumed the Butler Case): where the holder by grant may legally ac

"That the flowage of water beyond the exquire an estate less in quantity or different cavated channel did not evidence an appropria

tion under the power of eminent domain of the in quality. As we have said, a fee may ex- fee in the flooded lands; that the right of flowist in an easement. Branson v. Studabaker, age is merely an easement; that evidence of supra.

the fact of flowage for 20 years establishes

nothing more than a prescriptive right to such “The doctrine generally accepted is that the easement." right acquired by the power of eminent domain extends only to an easement in the land taken, The significance of the Butler Case conunless the statute plainly provides for the ac-sists in the following: That under the act of quisition of a larger interest.”. Quick v. Taylor, 113 Ind. 540, 16 N. E. 588.

1836, the state by appropriation proceedings

acquired title in fee to the lands appropriSee, also, Chicago, etc., Co. v. Huncheon, ated. If the overflowed lands were neces130 Ind. 529, 30 N. E. 636; Hoffman v. Zoll- sary to the canal enterprise, the state by proman, 49 Ind. App. 664, 97 N. E 1015.

ceedings under that act would have acquired [2] It is also the general rule that where the lands in fee. The lands were in fact a railroad right of way is acquired by pre- held by the state and its grantees for flowscription, the company takes only an ease age purposes in connection with the canal ment. 23 Encyc. 704; 30 Cyc. 150; Elliott's enterprise for more than 20 years. From Railroads, $ 402. As we have indicated, how- such use there originated a prescriptive right ever, it is recognized that under the act of in the lands overflowed. The fact, however, 1832, creating the Madison, Indianapolis & that the state might have acquired the lands Lafayette Railroad Company, and the act in fee, considered in connection with the exof 1846, creating the Peru & Indianapolis ercise of such right for the prescriptive peRailroad Company, and the act of 1848, cre- riod, was not sufficient to raise the presumpating the Indianapolis & Bellefontaine Rail- tion that it had acquired the lands in fee, road Company, the courts hold that by con- but established merely a right sufficiently demnation or by release, in the absence of a broad to protect the use as it had been exercontract to the contrary, the lands involved cised; that is, that the prescriptive right are acquired in fee. Likewise, under the was an easement of flowage rather than tipublic improvement acts of 1835 and 1836 tle to the lands in fee.

Whatever interest or estate appellee owns , land. It results that the cause must be rein the land involved here is based on the versed. fact that the use of such lands for the full Judgment reversed, with instructions to represcriptive period, or in other words, such state the conclusions of law in harmony with interest or estate, is in the nature of a pre- this opinion, and to decree accordingly. scriptive right. It is the use of the lands as indicated which the court finds to have been

(62 Ind. App. 312) continuously and adversely exercised. Appellee, in support of its contention that un

SWIFT & CO. v. MILLER. (No. 9055.) der the facts found it owns the lands in fee (Appellate Court of Indiana, Division No. 1.

June 6, 1916.) rather than an easement therein, constructs an argument in effect as follows: That pre- 1 PLEADING 201-DEMURRER-ACCOMPAscriptive creates the presumption of a grant NYING MEMORANDA-SUFFICIENCY. that by the act of 1832 appellee's predecessor required by Burns Ann. St. 1914, § 344, cl. 6,

Memoranda, accompanying a demurrer as was authorized to acquire lands in fee by re- held sufficient although denominated argument. linquishment equivalent to a grant. A pre- [Ed. Note. For other cases, see Pleading, scriptive right being established, a grant co-Cent. Dig. $$ 473-479; Dec. Dig. 201.) extensive in quantity and identical in quality 2. BILLS AND NOTES Om482—ACTIONS COM with the grant which appellee's predecessor PLAINT — NOTICE OF DISHONOR - THEREwas authorized to take by the terms of the

UPON.”

An allegation that checks were dishonored, creating act must be presumed, and hence and that thereupon plaintiff gave due notice to that appellee must be declared to be the own- indorsers, held sufficient on demurrer, the word er of the land in fee. But, as we have estab "thereupon" signifying "immediately; at once ;

without delay." lished from a consideration of the decided

[Ed. Note. For other cases, see Bills and cases, the fact that appellee's predecessor Notes, Cent. Dig. $$ 1533, 1562; Dec. Dig. Om was authorized by its creating statute to ac-482. quire lands in fee for right of way purposes

For other definitions, see Words and Phrases, was not prohibitive of a right to acquire by First and Second Series, Thereupon.) contract, and hence by grant a less interest 3. PLEADING 367(2) - MOTIONS - MAKING

MORE SPECIFIC. or a smaller estate in the lands desired. The

Complaint, in an action against indorser of question, therefore, arises whether from the checks, held sufficient, in the absence of a moestablished prescriptive right a grant of the tion to make complaint more specific. lands in fee must be presumed, or merely a

[Ed. Note.-For other cases, see Pleading, grant of an estate or interest sufficiently Cent. Dig. $$ 64, 1174; Dec. Dig. Om 367(2).] comprehensive to protect the use as it has 4. PRINCIPAL AND AGENT 109(4) – AUbeen exercised.

THORITY OF AGENT-SCOPE.

The authority of an agent to sell goods and Indianapolis Water Co. v. Kingan, supra, collect therefor does not confer on him implied is in point here. That case involved the authority to bind his principal by a separate, question of the overflow of lands incident to original, and independent contract of indorsethe construction and operation of a canal ment, since such authority is not essential to built under the public improvement acts of press authority granted.

ex1835 and 1836. There, as here, appellant's [Ed. Note. For other cases, see Principal and predecessors were authorized by such acts in Agent, Cent. Dig. $$ 322, 365; Dec. Dig. Om

109(4).] a proper proceeding to acquire lands in fee for canal purposes. The flowage having con- 5. PRINCIPAL AND AGENT 109(4)-AUTHORtinued for more than 20 years, the canal pro

ITY OF AGENT-LIMITATIONS-INDORSEMENT

OF NEGOTIABLE INSTRUMENTS. prietors claimed title to the overflowed lands Where defendant's agent having authority in fee. In holding against such contention, to sell, collect, and remit, was furnished a stamp the Supreme Court say:

for the indorsement of customers' checks payable “After possession for 20 years the conclusive order for exchange payable to Swift & Com

to his principal as follows: "Pay to

or presumption arises of a grant of a right ample pany. Swift & Company, by

" -no implienough to protect the possession. 'A prescrip- cation can be entertained that such agent had tive right can never be broader than the claim authority to indorse with such stamp, his perevidenced by the user.' * * * The user by sonal check made payable to his principal, even flowage evidenced no broader claim than a right though exchange be procured by the use of such of flowage; and such a claim is a mere ease-check. ment.”

[Ed. Note.-For other cases, see Principal and See, also, Consumers', etc., Co. v. Ameri-Agent, Cent. Dig. 88 322, 365; Dec. Dig. Om can, etc., Co., 162 Ind. 393, 68 N. E. 1020; 109(4).] Peoria, etc., Co. v. Attica, etc., Co., 154 Ind. 6. PRINCIPAL AND AGENT 119(1)-AUTHOR218, 56 N. E. 210; Brookville, etc., Co. v. But

ITY OF AGENT-LIMITATIONS-INDORSEMENT ler, supra; Hoffman v. Zollman, supra.

OF NEGOTIABLE INSTRUMENTS.

The limitations of authority shown by the We conclude that appellee's estate in the stamp itself were sufficient notice to others to lands described in the decree, under the facts put them upon inquiry as to the extent of such found, is an easement to use and occupy such agent's authority, and the burden is therefore

on them to show the requisite authority. lands for the purpose of maintaining and op

[Ed. Note.-For other cases, see Principal and erating its railroad on and over the same, Agent, Cent. Dig. $8 391, 393, 398, 399, 401; rather than an estate in fee simple in the Dec. Dig. Om119(1).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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