Elliott, J.
In 1841 a public highway was laid out through Carroll county. The line of this highway crossed the Wabash river at a point not.far from the town of Carrollton, and since it was opened the highway has been continuously used by the public. In 1842 a dam was built by [574] the State across the "Wabash river a short distance below the line of the highway, and the pond formed by this dam constituted a part of the Wabash and Erie Canal. This canal was constructed by the State under the Internal Improvement Acts passed some years before. During the years 1842 and 1843 a bridge was built across the river on the line of the highway; it was built on stone abutments and piers, the piers resting on submerged timbers. The superstructure was a wooden one, combining a wagon and carriage way and a towing-path bridge, for the towing horses of the canal; the towing-path part of the bridge was attached to the structure “ as a narrow wing supported by cross-timbers extending under the other part of the bridge.” The bridge was used for public travel and by the persons navigating the canal; the public used it in connection with the highway, and those navigating the canal used the towpath part to transfer the horses used in towing the boats across the river. Pursuant to the laws enacted by the Legislature, the canal and its appurtenances were pledged by the State to secure money borrowed by it. In 1873 the superstructure of the bridge was blown down and was replaced by the county of Carroll. The canal was abandoned in 1875, but the bridge continued to be used as a part of the highway until February, 1881, when the superstructure was carried away by the ice, leaving the stone piers and abutments standing. In 1880 the dam was destroyed, “ and the water let out of the pond so that the timber foundations of the piers were left uncovered and exposed to the air and decay, and in order to restore the bridge to a safe and fit condition for public travel, it was necessary to take down the piers and replace them on other foundations.” By virtue of a decree of the circuit court of the United States, rendered in 1874, the canal was sold in February, 1876, and from that sale the title of the appellants is derived.
The controversy in this case is as to the right of the com[575] missioners of Carroll county to make use of the materials in the piers in rebuilding the bridge.
Our decisions establish the doctrine that the purchasers of the canal acquired such rights as the State had in the lands appropriated for canal purposes, and that the estate which the State acquired was a fee. These decisions, although they have been yielded to with reluctance, must be considered as declaring the law of the State. Water Works Co., etc., v. Burkhart, 41 Ind. 364; Nelson v. Fleming, 56 Ind. 310; Cromie v. Board, etc., 71 Ind. 208; City of Logansport v. Shirk, 88 Ind. 563; Brookville, etc., Co. v. Butler, 91 Ind. 134 (46 Am. R. 580).
Upon the authority of these cases we affirm that the estate taken by the State in the lands appropriated for the canal was a fee, and that the appellants succeeded to that estate. But, while the appellants acquired all the estate of their remote grantor, the State of Indiana, in the canal and its appurtenances, they acquired nothing more. If the estate which they acquired was burdened with any charge or easement which was open to view and was one which the appellants were bound to take notice of, then it remains subject to that burden in their hands. It is not essential that a grantee should have actual knowledge of the burden, for it is a familiar doctrine, that one who has means of knowledge is presumed to have knowledge. This doctrine is often applied to easements, and the owner of the dominant estate, in a visible and open way across the land of another, can not be deprived of his rights although the servient estate may have been purchased by one who has no actual knowledge of the easement. The use of the bridge by the public as a part of the highway was equivalent to possession. Possession is notice, and here there was possession by the public. But, more than this, the construction of the bridge at the place where it was located, the manner of its construction, the necessity for its erection caused by the damming up of the water of the river, and the use to which it was devoted, combine with the actual [576] and long continued use for the purposes of public travel, to supply notice that the bridge was erected for a double purpose, to accommodate public travel, and to furnish facilities to enable navigators to use the canal. With these open and visible facts before them, the purchasers can not claim that they bought without notice of the right of the public to continue the use of the bridge for the purpose for which it was erected, and for which it had been used for nearly forty years.
Free access — add to your briefcase to read the full text and ask questions with AI
Elliott, J.
In 1841 a public highway was laid out through Carroll county. The line of this highway crossed the Wabash river at a point not.far from the town of Carrollton, and since it was opened the highway has been continuously used by the public. In 1842 a dam was built by [574] the State across the "Wabash river a short distance below the line of the highway, and the pond formed by this dam constituted a part of the Wabash and Erie Canal. This canal was constructed by the State under the Internal Improvement Acts passed some years before. During the years 1842 and 1843 a bridge was built across the river on the line of the highway; it was built on stone abutments and piers, the piers resting on submerged timbers. The superstructure was a wooden one, combining a wagon and carriage way and a towing-path bridge, for the towing horses of the canal; the towing-path part of the bridge was attached to the structure “ as a narrow wing supported by cross-timbers extending under the other part of the bridge.” The bridge was used for public travel and by the persons navigating the canal; the public used it in connection with the highway, and those navigating the canal used the towpath part to transfer the horses used in towing the boats across the river. Pursuant to the laws enacted by the Legislature, the canal and its appurtenances were pledged by the State to secure money borrowed by it. In 1873 the superstructure of the bridge was blown down and was replaced by the county of Carroll. The canal was abandoned in 1875, but the bridge continued to be used as a part of the highway until February, 1881, when the superstructure was carried away by the ice, leaving the stone piers and abutments standing. In 1880 the dam was destroyed, “ and the water let out of the pond so that the timber foundations of the piers were left uncovered and exposed to the air and decay, and in order to restore the bridge to a safe and fit condition for public travel, it was necessary to take down the piers and replace them on other foundations.” By virtue of a decree of the circuit court of the United States, rendered in 1874, the canal was sold in February, 1876, and from that sale the title of the appellants is derived.
The controversy in this case is as to the right of the com[575] missioners of Carroll county to make use of the materials in the piers in rebuilding the bridge.
Our decisions establish the doctrine that the purchasers of the canal acquired such rights as the State had in the lands appropriated for canal purposes, and that the estate which the State acquired was a fee. These decisions, although they have been yielded to with reluctance, must be considered as declaring the law of the State. Water Works Co., etc., v. Burkhart, 41 Ind. 364; Nelson v. Fleming, 56 Ind. 310; Cromie v. Board, etc., 71 Ind. 208; City of Logansport v. Shirk, 88 Ind. 563; Brookville, etc., Co. v. Butler, 91 Ind. 134 (46 Am. R. 580).
Upon the authority of these cases we affirm that the estate taken by the State in the lands appropriated for the canal was a fee, and that the appellants succeeded to that estate. But, while the appellants acquired all the estate of their remote grantor, the State of Indiana, in the canal and its appurtenances, they acquired nothing more. If the estate which they acquired was burdened with any charge or easement which was open to view and was one which the appellants were bound to take notice of, then it remains subject to that burden in their hands. It is not essential that a grantee should have actual knowledge of the burden, for it is a familiar doctrine, that one who has means of knowledge is presumed to have knowledge. This doctrine is often applied to easements, and the owner of the dominant estate, in a visible and open way across the land of another, can not be deprived of his rights although the servient estate may have been purchased by one who has no actual knowledge of the easement. The use of the bridge by the public as a part of the highway was equivalent to possession. Possession is notice, and here there was possession by the public. But, more than this, the construction of the bridge at the place where it was located, the manner of its construction, the necessity for its erection caused by the damming up of the water of the river, and the use to which it was devoted, combine with the actual [576] and long continued use for the purposes of public travel, to supply notice that the bridge was erected for a double purpose, to accommodate public travel, and to furnish facilities to enable navigators to use the canal. With these open and visible facts before them, the purchasers can not claim that they bought without notice of the right of the public to continue the use of the bridge for the purpose for which it was erected, and for which it had been used for nearly forty years.
We are quite as solicitous as counsel to maintain the honor and credit of the State, but we are unable to perceive that its honor or credit is impaired by the decision of the trial court, that the purchasers obtained what the State proposed to sell, and so we understand that decision. The State did not, either directly or indirectly, pledge or sell bridges erected to accommodate public travel, and this was one of the purposes for which the bridge involved in this controversy was erected. If it had been a highway bridge entirely disconnected with the canal, it could not, with the faintest tinge of plausibility, be argued that it passed with the conveyance of the canal, and in so far as the bridge was constructed as a part of the highway, it is not an appurtenance of the canal, but stands upon the same footing as if it had been simply a highway bridge. St. Louis Bridge Co. v. Curtis, 103 Ill. 410. It may be that the appellants acquired a right to have the bridge maintained so that it can be used for canal purposes, but, however this may be, they did not acquire a right to take part of the highway, and such the bridge was, in so far, at least, as it was erected for the purposes of public travel. The State professed to sell nothing more than the canal and its appurtenances, and nothing more was bargained for by the .appellants. A bridge, or part of a bridge, erected for highway purposes, is no part of the canal, nor is it an appurtenance. The State had a right to build a bridge to accommodate public travel, and this right was exercised bv constructing the bridge in controversy. The purpose for which the bridge was constructed has never been abandoned, for the use has [577] been continuous since 1841. The State built the bridge for highway pui’poses and has not sold or professed to sell the right to use the bridge for the purposes for which it was constructed, although it has sold the right to use the bridge for canal purposes. We suppose it to be undeniably true that there may be two interests in the same structure, and that one may be sold and the other retained. This is what was done by the State, for it held one interest in the bridge as part of the highway, and another as appurtenant to the canal; the one was sold, the other was not. The State was the original owner of the two interests; with one it has parted, the other it has retained. Leaving out of consideration the question of what rights, if any, have been lost by abandonment, it may, perhaps, be justly affirmed that the appellants have some interest in the bridge, but they have not in any event the whole interest, for that never went out of the State. They have, at all events, no such interest as will enable them to prevent the State, through its local instrumentality, the board of commissioners, from rebuilding the bridge and restoring the highway to its former condition. The State did not lose its right to the highway, whatever may be the result in other respects of the transfer of the canal. City of Logansport v. Shirk, supra.
Filed March 11, 1886.
We express no opinion upon the effect of the abandonment of the canal, nor do we undertake to precisely define the interest, if any, of the appellants, but we do hold that they can not prevent the county from rebuilding the bridge upon its former location, nor from using the stones in the piers and abutments for that purpose.
Judgment affirmed.