[6] The notes were held in trust by the bank for the owner. The funds were needed to pay the depositors, and were taken for that purpose in the process of liquidation. The suit was not begun until July, 1912, and the auditor took charge of the bank on November 3, 1911. This is a suit for conversion. Under the statute aforesaid the notes were rightly taken to pay the depositors, because the assets of the bank were insufficient to pay them in full, even after including in the assets the proceeds of the notes in controversy. There can be no conversion where property is rightfully taken in pursuance of law. Bixel v. Bixel, 107 Ind. 534, 8 N. E. 614; Clegg v. Baumberger, 110 Ind. 536, 9 N. E. 700. CALDWELL, C. J. Appellee brought this action against appellants to quiet its title, alleged to be in fee simple, to a certain parcel of real estate situated in the block and bounded by Chestnut, Morris, Wenzel (now Delaware), and Hanway (now Downey) streets in the city of Indianapolis. The tract as described in the complaint is an irregular quadrilateral, situated in the southwest corner of the block, being within the northeast angle formed by the intersection of Chestnut and Downey streets, the latter forming its southern and the former its western boundary. The errors relied upon are based in appellant's exceptions reserved to the conclusions of law. The first conclusion is in effect that appellee is the owner in fee simple of the tract of land described in such conclusion, the boundaries of which are not identical with the boundaries of the tract described in the complaint. The former excludes a triangular parcel of ground includ [7, 8] The ultimate result reached by the trial court was right. Where this is the case erroneous reasons given for such conclusion or intervening errors that deprived the complaining party of no substantial right afford no ground for reversal of the judged in the latter, situated in the extreme ment. Lake Shore, etc., R. Co. v. Myers, 52 Ind. App. 59, 74, 98 N. E. 654, 100 N. E. 313; Olds v. Lochner, 57 Ind. App. 269, 106 N. E. 889; sections 407, 700, Burns 1914. In reaching this conclusion we are not called upon to determine, and do not decide, what, if any, right of action appellant may have against the bank in some appropriate suit. Judgment affirmed. (63 Ind. App. 156) MEYER et al. v. PITTSBURGH, C., C. & ST. (Appellate Court of Indiana, Division No. 2. 1. EASEMENTS 1-FEE SIMPLE. A fee may exist in an easement. - 1.] [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7; Dec. Dig. 2. RAILROADS 69-RIGHT OF WAY-TITLE BY PRESCRIPTION-EXTENT OF TITLE. A prescriptive title to land by use for railway purposes is only a right of way easement, although the charter of the predecessor, of a railroad company claiming title by prescription, provides that when it shall have procured its right of way it shall be seised in fee simple of the right to use such land, since this did not affect the company's right to take a grant of a lesser estate, and hence does not affect the presumption of no greater grant than necessary to protect the use made. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 161-165; Dec. Dig. 69.] Appeal from Circuit Court, Marion County; Charles Remster, Judge. southwest corner of the block, while the eastern line of the former does not exactly coincide with the eastern line of the latter. The remaining conclusion is, in substance, that appellee is entitled to recover costs. The decree follows the conclusions. Appellants in their brief clearly outline the scope of the controversy submitted for our consideration, as follows: "There is but one question presented by this appeal. That question is whether, under the facts specially found by the court, the appellee by its tracks with proper clearance, or acquired acquired a fee-simple title to the lands covered but an easement." We proceed to consider such question. The finding to the extent necessary to a determination of such question is substantially as follows: By an act of the General Assembly of the state of Indiana, approved February 2, 1832, the Madison, Indianapolis & Lafayette Railroad Company was created. In 1866, its successor, the Indianapolis & Madison Railroad Company, consolidated with the Jeffersonville kailroad Company, under the name of the Jeffersonville, Madison & Indianapolis Railroad Company. The latter, June 10, 1890, consolidated with certain other companies thus forming appellee. Prior to October 9, 1890, the Jeffersonville, Madison & Indianapolis Railroad Company, or some one of its predecessors in title, entered upon and extended in a northwestern direction across the parcel of land described in the complaint a railroad, consisting of a main track Suit by the Pittsburgh, Cincinnati, Chicago with a side track paralleling it on either & 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. Refor railroad 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 O. Pickens quired in such parcel of ground by virtue of and Owen Pickens, both of Indianapolis, for the extension, maintenance, and use of appellee. such railroad tracks thereon passed to such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes respecting the parcel of ground described in the conclusion and decree: That is, "has been in the possession of and used and occupied by the plaintiff in the operation of said railroad and by its embankment and tracks laid thereon for more than 20 years prior to the bringing of this action, and such use and possession by the plaintiff thereof has been continuous, open, notorious, and adverse to the claim or interest therein of any owner thereof for more than 20 years prior to the commencement of this action." 99 The parties apparently agree that the find succeeding and consolidated companies in succession, including appellee. On said October 9, 1890, McCarty and others were the owners of the south part of the block bounded by the streets aforesaid, including the tract of land as described in the complaint, and as described in the conclusions and decree, subject, however, to the rights of the Jeffersonville, Madison & Indianapolis Railroad Company, and its assigns therein. On said day such owners conveyed the entire tract 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 more than the statutory period for the uses 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 an assessment, amounting to $520.50, for constructing a public sewer along Downey street. Fahnley & McCrea, as owners, signed the waiver authorized by the statute, and thereafter, prior to conveying the tract to appellants, paid the assessment in full. Appellants, after the conveyance of the tract to them in 1901, paid the taxes and municipal assessments against it as they arose, except that in September, 1910, appellee paid an assessment levied in its name in the sum of $525.19 for the construction of a sidewalk along the east side of Chestnut street, of which assessment and its payment by appellee appellants had no notice prior to the bringing of this action. In 1913, preparatory to the execution of a purpose to elevate its tracks, appellee entered into negotiations with appellants for the purchase and to procure the conveyance to it by appellants of the lands described in the complaint. Thereupon, at appellee's invitation, appellants submitted in writing a proposition to sell and convey to appellee. Appellee received and retained such proposition without response, and such negotiations, terminated and failed. Several days after such proposition was submitted, at a meeting before the board of public works of Indianapolis, appellee by attorney asserted a claim to the ownership of the lands described in the complaint. 1nis was appellants' first knowledge that appellee claimed to own the lands, except such knowledge as is implied from the use of the lands as aforesaid. There is included in the finding the following with which originated the possession and occupancy of such parcel of ground continued through a number of intermediate and constituent companies to appellee. The finding on this subject is that some time prior to October 9, 1890, the Jeffersonville, Madison & Indianapolis Kailroad Company, or some one of its predecessors in title, entered upon such lands and constructed a railroad. The General Assembly, by an act approved February 1, 1834, changed the name of the Madison, Indianapolis & Lafayette Company to the Madison & Indianapolis Railroad Company. Acts 1834, p. 244. The parties agree that under the latter name, the company in 1847 extended its line to and into the city of Indianapolis, and that in so doing it entered upon the lands involved here, and located and constructed its track over the same, and that the rights acquired by it and its successors, including appellee, in continuing the occupancy of said lands must be measured by the rights that the entering company would have acquired under the same circumstances had the latter, rather than its successors, continued such occupancy and use as set out in the finding. As measuring the hypothetical rights of the entering company under the supposition aforesaid, and consequently the rights of appellee, and to sustain their respective contentions, the parties appeal to the said act of 1832 (Acts 1832, p. 81), by the provisions of which the Madison, Indianapolis & Lafayette Railroad Company, predecessor of the Madison & Indianapolis Company, was created. To the end indicated, ap pellee points particularly to section 19 of former authorized the created corporation to 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 out lined. 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 Sections 15 and 16 of the acquire lands for right of way purposes by release, and by condemnation where a voluntary release could not be obtained. Section 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: of the effect which the releases and condemna"We think it simply intended as declaratory tion 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. v. 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 & 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 which the state's grantee claims under the The court in holding that only an easement board's exercise of the power of eminent dowas created, say: "We do not think the question before us is affected by the provisions of the charter of appellant's grantor, for here the right is founded entirely upon contract, and not upon proceedings under the right of eminent domain. The question is not, what estate might have been acquired, but what estate did the one party bargain for and the other convey? It does not follow that because a railroad company may take an estate in fee or a right of way of defined width, it does take such an estate or such a right of way, for parties may, by their contract, create a less estate than a fee, or a right less in extent than that which the law authorizes the grantee to acquire." [1] It would therefore seem to follow that while prescription creates the presumption of a grant, a grant of the corpus of the land in fee simple is not necessarily presumed where the holder by grant may legally acquire an estate less in quantity or different in quality. As we have said, a fee may exist in an easement. Branson v. Studabaker, supra. "The doctrine generally accepted is that the right acquired by the power of eminent domain extends only to an easement in the land taken, unless the statute plainly provides for the acquisition of a larger interest." Quick v. Taylor, 113 Ind. 540, 16 N. E. 588. See, also, Chicago, etc., Co. v. Huncheon, 130 Ind. 529, 30 N. E. 636; Hoffman v. Zollman, 49 Ind. App. 664, 97 N. E. 1015. [2] It is also the general rule that where a railroad right of way is acquired by prescription, the company takes only an easement. 23 Encyc. 704; 30 Cyc. 150; Elliott's Railroads, § 402. As we have indicated, however, it is recognized that under the act of 1832, creating the Madison, Indianapolis & Lafayette Railroad Company, and the act of 1846, creating the Peru & Indianapolis Railroad Company, and the act of 1848, creating the Indianapolis & Bellefontaine Railroad Company, the courts hold that by condemnation or by release, in the absence of a contract to the contrary, the lands involved are acquired in fee. Likewise, under the public improvement acts of 1835 and 1836 main." The Thus, in Brookville, etc., Co. v. Butler, 91 Ind. 134, 46 Am. Rep. 580, the state, under the Public Improvement Act of 1836, had appropriated lands for canal purposes. canal had been constructed in such a manner that at one point it overflowed a tract of low land forming a pond. In a suit involving the fee to the overflowed lands, commenced after such flowage had continued more than 20 years, it was held that while by the appropriation proceedings, the state had acquired, and that it had transmitted to its grantees title in fee to the land occupied by the canal and its appurtenances, yet (quoting from the Kingan Case, supra, which reviews the Butler Case): "That the flowage of water beyond the excavated channel did not evidence an appropriation under the power of eminent domain of the fee in the flooded lands; that the right of flowage is merely an easement; that evidence of the fact of flowage for 20 years establishes nothing more than a prescriptive right to such easement." The significance of the Butler Case consists in the following: That under the act of 1836, the state by appropriation proceedings acquired title in fee to the lands appropriated. If the overflowed lands were necessary to the canal enterprise, the state by proceedings under that act would have acquired the lands in fee. The lands were in fact held by the state and its grantees for flowage purposes in connection with the canal enterprise for more than 20 years. From such use there originated a prescriptive right in the lands overflowed. The fact, however, that the state might have acquired the lands in fee, considered in connection with the exercise of such right for the prescriptive period, was not sufficient to raise the presumption that it had acquired the lands in fee, but established merely a right sufficiently broad to protect the use as it had been exercised; that is, that the prescriptive right was an easement of flowage rather than title to the lands in fee. Judgment reversed, with instructions to restate the conclusions of law in harmony with this opinion, and to decree accordingly. (62 Ind. App. 312) SWIFT & CO. v. MILLER. (No. 9055.) (Appellate Court of Indiana, Division No. 1. June 6, 1916.) 1 PLEADING 201-DEMURRER-ACCOMPA- required by Burns' Ann. St. 1914, § 344, cl. 6, 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 prescriptive period, or in other words, such interest or estate, is in the nature of a prescriptive right. It is the use of the lands as indicated which the court finds to have been continuously and adversely exercised. Appellee, in support of its contention that under the facts found it owns the lands in fee rather than an easement therein, constructs an argument in effect as follows: That prescriptive creates the presumption of a grant that by the act of 1832 appellee's predecessor was authorized to acquire lands in fee by relinquishment equivalent to a grant. A prescriptive right being established, a grant coextensive in quantity and identical in quality with the grant which appellee's predecessor was authorized to take by the terms of the creating act must be presumed, and hence that appellee must be declared to be the owner of the land in fee. But, as we have established from a consideration of the decided cases, the fact that appellee's predecessor was authorized by its creating statute to acquire lands in fee for right of way purposes was not prohibitive of a right to acquire by contract, and hence by grant a less interest or a smaller estate in the lands desired. The question, therefore, arises whether from the established prescriptive right a grant of the lands in fee must be presumed, or merely a grant of an estate or interest sufficiently comprehensive to protect the use as it has been exercised. An allegation that checks were dishonored, and that thereupon plaintiff gave due notice to indorsers, held sufficient on demurrer, the word "thereupon" signifying "immediately; at once; without delay." [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1533, 1562; Dec. Dig. 482. For other definitions, see Words and Phrases, First and Second Series, Thereupon.] Complaint, in an action against indorser of checks, held sufficient, in the absence of a motion to make complaint more specific. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 64, 1174; Dec. Dig. 367(2).] 4. PRINCIPAL AND AGENT 109(4) - Au 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 canalment, since such authority is not essential to the performance of duties contemplated by exbuilt under the public improvement acts of press authority granted. 1835 and 1836. There, as here, appellant's predecessors were authorized by such acts in a proper proceeding to acquire lands in fee for canal purposes. The flowage having continued for more than 20 years, the canal proprietors claimed title to the overflowed lands in fee. In holding against such contention, the Supreme Court say: "After possession for 20 years the conclusive presumption arises of a grant of a right ample enough to protect the possession. A prescriptive right can never be broader than the claim evidenced by the user.' * The user by flowage evidenced no broader claim than a right of flowage; and such a claim is a mere easement." See, also, Consumers', etc., Co. v. American, etc., Co., 162 Ind. 393, 68 N. E. 1020; Peoria, etc., Co. v. Attica, etc., Co., 154 Ind. 218, 56 N. E. 210; Brookville, etc., Co. v. Butler, supra; Hoffman v. Zollman, supra. We conclude that appellee's estate in the lands described in the decree, under the facts found, is an easement to use and occupy such lands for the purpose of maintaining and operating its railroad on and over the same, rather than an estate in fee simple in the [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 322, 365; Dec. Dig. 109(4).] 109(4)-AUTHOR 5. PRINCIPAL AND AGENT or Where defendant's agent having authority to sell, collect, and remit, was furnished a stamp for the indorsement of customers' checks payable to his principal as follows: "Pay to order for exchange payable to Swift & Company. Swift & Company, by "no implication can be entertained that such agent had authority to indorse with such stamp his personal check made payable to his principal, even though exchange be procured by the use of such check. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 322, 365; Dec. Dig. 109(4).] 6. PRINCIPAL AND AGENT 119(1)—AUTHORITY OF AGENT LIMITATIONS-INDORSEMENT OF NEGOTIABLE INSTRUMENTS. The limitations of authority shown by the stamp itself were sufficient notice to others to put them upon inquiry as to the extent of such agent's authority, and the burden is therefore on them to show the requisite authority. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 391, 393, 398, 399, 401; Dec. Dig. 119(1).] |