Home/Indiana Supreme Court/Null v. Williamson

Null v. Williamson

78 N.E. 76, 166 Ind. 537, 1906 Ind. LEXIS 134
Indiana Supreme Court·Decided May 29, 1906·No. No. 20,626·Published·Cited by 17 cases

Opinion

Gillett, J.

—Appellee filed a complaint in two paragraphs against appellant. Tbe first was to establish, and to enjoin tbe obstruction of, a private way, extending along tbe north end of certain lots in tbe town of New Haven, from a public street to a barn which was situate about two hundred fifteen feet from said street. Tbe other para[539] graph seems to have been founded on the theory that the strip of land in controversy is a public alley, and that, as it had been obstructed, and as the obstruction caused a special injury to appellee, she was entitled to maintain a suit to enjoin appellant from obstructing the alleged way.

1. 2. As every easement lies in grant, actual or presumed, appellee might have greatly simplified the first paragraph of her amended complaint by alleging her ownership of the way claimed, leaving to the evidence to disclose whether she had an easement by prescription. Hall v. Hedrick 1890), 125 Ind. 326; Mitchell v. Bain (1895), 142 Ind. 604, 606. The elements which constitute a prescriptive easement are well understood. Davis v. Cleveland, etc., R. Co. (1894), 140 Ind. 468, and cases there cited. Owing to the existence of a recital in said paragraph, some facts can only be-said to appear, if at all, as matters of necessary inference from facts well pleaded. As to the extent that some essential matters may be said thus to appear, the views of the members of' this court are quite divergent. However, as doubt does not exist as to the requirements of a prescription in such an action, and as the case must be reversed, as there is a failure of proof, we shall put our reversal on that ground. As to the second paragraph of the amended complaint, we may say, in passing, that its validity is a moot question. The evidence, as it developed on the trial, had no tendency to show the existence of a public alley, out of which a subsidiary right in appellee could grow, and, therefore, the existence of said paragraph may be disregarded. We proceed to the question as to whether the court erred in overruling appellant’s motion for a new trial.

As conducive to a more ready understanding of the matter, we exhibit the following plat of the locus in quo.

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Null v. Williamson, 78 N.E. 76, 166 Ind. 537, 1906 Ind. LEXIS 134 (Ind. 1906).

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