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his brother, was an owner of the property in 1881, testified that he and his brother did not claim any easement on the berm of the canal.

There undoubtedly has been a long period of user of the land in question for the purposes of a way, but at least down to the time the canal fell into disuse, we think that it can be affirmed with confidence that It does not appear that appellee or her grantors had acquired the servitude claimed. Prescriptive easements have never been regarded as governed by the statute of limitations concerning ejectment, but until the regulation of the matter by statute in England it was the practice of the judges, following the analogy of the statute of limitations, to submit to juries the question whether after a 20-year possession, under circumstances now recognized as requisite to make out a prescription, a presumption of a grant should be drawn. With a majority of the courts of this country, however, it appears that from a mere inference of fact the doctrine has hardened into a presumption juris et de jure, or conclusive evidence of right. Mitchell v. Parks, 26 Ind. 354; Miller v. Richards, 139 Ind. 263, 38 N. E. 854; 3 Kent, Com. 444; 4 Cyc. 1146, and cases cited. It seems probable that our statute concerning easements (section 5746, Burns' Ann. St. 1901) is but declaratory of this doctrine.

The owner of the servient tenement may not show that in fact there was no grant, but he may show by facts and circumstances that there was not such a holding as would ripen into a legal title. 14 Cyc. 1147. It is undoubted that as a general rule the open and continuous use of a way, apparently as owner, for the statutory period casts upon the servient owner the burden of explaining that possession (Rennert v. Shirk, 163 Ind. 542, 72 N. E. 546); but, as the doctrine of prescription is founded on the presumption of a grant, the person against whom it is asserted may appeal to facts and circumstances for the purpose of showing that the use was not under claim of right. In Arnold v. Stevens, 24 Pick. (Mass.) 106, 35 Am. Dec. 305, the court said: "An enjoyment with the consent, or consistently with the rights, of the true owner, has no tendency to prove a conveyance from him. Bealey v. Shaw, 6 East, 214; Keene v. Deardon, 8 Id. 263. The very ground of the presumption is the difficulty or impossibility of accounting for the possession or enjoyment without the existence of a grant or some other lawful conveyance. Devereux v. Duke of Norfolk, 1 Price, 247. But, if the possession can be accounted for consistently with the title, no presumption arises. 2 Saund. 175, note; Daniel v. North, 11 East, 372; Wood v. Veal, 5 Barn. & Ald. 454. "The presumption of a deed from long usage is for the furtherance of justice and for the sake of peace, when there has been a long exercise of an adverse right.' 'For instance, it cannot be supposed that any man would suffer his neighbor to use a way

with carts and carriages over his meadow, for 20 years successively, unless some agreement had been made between the parties to that effect.' Crimes v. Smith, 12 Co. 4; Bedle v. Beard, Id. 5; Mayor of Kingston v. Jorner, Cowp. 102; Parker v. Baldwin, 11 East, 448. 'But,' says a learned judge of the Supreme Court of the United States, 'presumptions of this nature are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in the party in possession. They can, therefore, never arise where all the circumstances are perfectly consistent with the nonexistence of a grant.' Rickard v. Williams, 7 Wheat. (U. S.) 109, 5 L. Ed. 398.” If the facts and circumstances of a case lead to the conclusion that the user was merely permissive, they are fatal to the prescription. Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669, 6 L. R. A. 159. 6 L. R. A. 159. "The inference of a grant, if raised at all, is derived from a claim on the one side and a yielding on the other of that which can properly only be created by grant." 2 Washburn, Real Property, *42. Where a space is designedly left open by the owner, either for his own convenience or to enable his customers to resort to him, the presumption ordinarily is that a use of such space by an individual, even for his own purposes, is permissive. 14 Cyc. 115; Kilburn Adams, 7 Metc. (Mass.) 33, 39 Am. Dec. 754. And the fact that a use was one which was shared with the public gives rise, in the absence of evidence to the contrary, to a presumption that it was not under an exclusive or particular claim of right. 14 Cyc. 1157.

The only fact that might seem to distinguish this case from the doctrine last stated is that there was a portion of the alleged way which appellee's grantors used that was beyond the portion of the berm which the public resorted to in connection with the transportation of freight. But the question then arises, an adequate reason for leaving the berm uninclosed appearing, whether a use of it to the west of the traveled way, where the berm was too narrow to admit of unloading freight and yet leave room for wagons to pass and repass, was so far burdensome to the canal company as to warrant the supposition that there was an acquiescence in a hostile claim. Of course, it is not necessary to prove any actual damage to the owner; but, particularly in the case of a small piece of land which is wholly unavailable for the use of the owner, where the travel may reasonably be referred to an implied license, it would seem that the use should be treated as permissive. 2 Washburn, Real Property, *44; Jesse French, etc., Co. v. Forbes, 129 Ala. 471, 29 South. 683, 87 Am. St. Rep. 71; Donnell v. Clark, 19 Me. 174; 14 Cyc. 1155; 22 Am. & Eng. Ency. of Law, 1200. Thus it was said by Elliott, J., in Parish v. Kaspare, 109 Ind. 586, 10 N. E. 109: "An owner of land is not

shorn of any of his rights by merely permitting, as a favor, another to pass over his lands. In order to establish a prescriptive right, something more than mere permissive user must be shown. God. Easm. (Bennett's Ed.) 134. The use of land for the purpose of passing over it is not inconsistent with the right of ownership; and where there is no inconsistency between the use and the ownership, there can be no prescriptive right.” We deem it clear that, down to the time that the canal was abandoned, there was no showing made of a user which would warrant the conclusion that it was adverse, and as there was no evidence that conditions had materially changed, so as to render the exercise of the right a burdensome one, we are of opinion that the user did not cast a burden on appellant to explain it.

So much for the matter in the absence of direct proof of an adverse holding. Upon that point it is to be recollected that the witnesses, whom appellee offered, disclaimed the idea that there was any claim of right in themselves, as distinguished from the public. Her own testimony shows that she and her grantors "merely used it"; that they merely "took the right to go there all the time, because it seemed to be the only way to get to the stable." If evidence of this character can be said to exert any force, its tendency must be to break down the claim of an adverse possession.

Judgment reversed, with a direction to grant a new trial.

(38 Ind. A. 156)

HUBBARD v. SECURITY TRUST CO. et al. (No. 5,718.)

(Appellate Court of Indiana, Division No. 2. May 29, 1906.)


Where an execution had been levied on certain property, and it was returned to the execution defendant on the giving of a delivery bond, a receiver of the execution defendant occupies the same position with regard to the property as the execution defendant would have done.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Receivers, § 124.]


Where a surety on a delivery bond for property levied on was required to pay the amount of the judgment, he is subrogated to all the rights of the original creditor as against the property or its proceeds.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Subrogation, § 17.]



Burns' Ann. St. 1901, § 1576, provides that an execution operates as a lien on the personal property of the judgment debtor liable to be seized. Sections 756, 1582, provide that property taken under execution may be returned to the execution defendant on the giving of a delivery bond. Section 1583 provides that on the condition of the bond being broken, the execution plaintiff may prosecute his remedy thereon or by alias execution. Section 1578 provides that an alias writ must be issued on the return

of an execution by the officer that he has a delivery bond. Held, that a delivery bond does not operate to discharge any lien or right of the judgment creditor, and hence a surety on a delivery bond, subrogated to the creditor's right, is entitled to have his claim against a receiver of the execution defendant allowed as a preferred claim.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Proceedings on a claim of Walter J. Hubbard against the Security Trust Company, receiver, and others. From a judgment that the claim was not a lien on the assets in the hands of the receiver, the claimant appeals. Reversed and remanded.

C. B. Clarke, W. C. Clarke, and M. M. Bachelder, for appellant. Frank C. Groninger, for appellees.

ROBY, J. The question for decision grows out of the following facts: The Varney Electric Company in 1904 obtained a judgment in a justice of the peace court of Marion county against the Topp Hygienic Milk Company for $117.29. An execution was issued thereon in due form, and placed in the hands of a constable, who levied upon a team of horses, harness, and wagon belonging to said milk company, which thereupon gave a delivery bond therefor, the same being executed by appellant as its surety, and by virtue of which said company retained possession of said property. It failed to pay the value of or deliver said property as required by the terms of said bond, and the electric company, by reason of said default, recovered judgment upon said bond against appellant for the sum of $144.37, and caused an execution against him to issue thereon, by reason of which he was compelled to and did pay the amount of said judgment and costs. A receiver for the milk company had, in the meantime, been appointed and taken possession of the horses, harness, and wagon above specified and sold the same for $180. Nothing has been paid by either the milk company or receiver upon said judgment, nor to appellant, who intervened in the matter of said receivership and petitions the court for an order requiring the receiver to pay him the amount paid by him as aforesaid. The court found upon these facts that appellant's claim was no lien upon the assets in the hands of the receiver, and allowed it as a general claim. Appellant's position is that he is entitled to have said amount allowed as a preferred claim.

The receiver occupies no different position with regard to the property released by said delivery bond or its proceeds than the milk company would do had no receiver for it been appointed. The effect of a receivership is to suspend the ordinary remedies for the enforcement of liability and render a re sort to the court having jurisdiction therein, necessary. McAnally v. Glidden, 30 Ind. App. 22, 65 N. E. 291. The doctrine of subrogation is independent of any merely con

tractual relations between the parties to be affected thereby, and applies to every instance where one person is required to pay a debt for which another is primarily answerable and should, in good conscience, pay. Johnson v. Barrett et al., 117 Ind. 551, 552, 19 N. E. 764, 3 L. R. A. 114; Peirce v. Higgins et al., 101 Ind. 178; Warford v. Hankins, 150 Ind. 489, 496, 50 N. E. 468. Appellant was not liable for the payment of the Varney judgment. He was not primarily liable for the payment of the judgment rendered upon the bond against him, the duty of the milk company being to return the property or make payment as it had agreed to do, and thereby hold its surety harmless. The case is one which demands the application of the equitable doctrine of subrogation, and appellant is entitled, as against the receivership, to the same remedies that the original creditor might have. It is urged by appellee that the question of appellant's suretyship has not been adjudicated. The answer to this objection is that the right which it is sought to enforce is an equitable one and equally available whether the question of suretyship has or has not been adjudicated in the statutory manner. Thomas et al. v. Stewart et al., 117 Ind. 50, 53, 18 N. E. 505, 1 L. R. A. 715.

It remains, therefore, only to inquire what right the judgment creditor held. An execution operates as a lien on the personal property of the judgment debtor, liable to be seized on it from the time that it comes to the hands of the officer. Burns' Ann. St. 1901, § 1576. Such property taken in execution may be returned to the execution defendant upon the delivery of a written undertaking, with sufficient surety to the effect that the property shall be delivered to the officer at a time and place named in the undertaking, to be sold according to law, or for the payment to the officer of the value thereof. Burns' Ann. St. 1901, §§ 756, 1582. Upon the condition of such bond being broken, the execution plaintiff may prosecute his remedy thereon or by alias execution, cause the same or other property, to be levied on, or having failed in either remedy may resort to the other. Burns' Ann. St. 1901, § 1583. The issuance of an alias writ upon the return of an execution by the officer that he has a delivery bond, is made obligatory, and under it the property first levied upon may be sold in the same manner as on the first execution. Burns' Ann. St. 1901, § 1578. The effect of the delivery bond is to entitle the defendant to the custody of the goods. It does not operate to discharge any lien or right of the judgment creditor. Bick et al. v. Lang et al., 15 Ind. App. 503, 44 N. E. 555; Gass et al. v. Williams et al., 46 Ind. 253; Dunn v. Crocker, 22 Ind. 324; Jaeger v. Stoelting, 30 Ind. 341. Appellant submitted his right to the trial court for adjudication. He had a right to appeal from any order adverse to his interest. He was entitled, not

only to have his claim allowed, but that it be given priority. Mayer, etc., v. Jessup, 106 U. S. 563, 1 Sup. Ct. 512, 27 L. Ed. 276; Bloxham v. Consumers', etc. (Fla.) 18 South. 444, 29 L. R. A. 511; Farmers' Loan & Trust Co. v. St. Louis, etc., 127 Ind. 250, 260, 26 N. E. 784, 11 L. R. A. 740.

Judgment reversed, and cause remanded, with instructions to sustain motion for a new trial and further proceedings.

(38 Ind. A. 115) INDIANAPOLIS NORTHERN TRACTION CO v. HARBAUGH. (No. 5,639.) (Appellate Court of Indiana, Division No. 1. May 29, 1906.)

1. APPEAL-PLEADINGS-REVIEW-RECORD. An appellate court, in reviewing the sufficiency of a complaint, may refer to the entire records and briefs of cinsel on both sides, in order to determine on what theory the complaint proceeds.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3262.]


In an action against a railway for the death of plaintiff's cow, plaintiff alleged that the grantor of plaintiff's lessor contracted to convey a right of way to the railroad company by a written contract containing a condition precedent requiring the railroad company to build a sufficient fence along the right of way before taking possession of the land, that such grantor subsequently sold the adjoining land to plaintiff's lessor by a deed conveying all rights and covenants running with the remaining unsold portion and that plaintiff had leased the land from such purchaser, that the railroad company failed to fence as required by the covenant in its contract, and negligently left paints and oils on its right of way accessible to plaintiff's cow, from which she drank and died. Held, that the cause of action so alleged was not founded on the deed to the railroad company, which was not alleged to contain the covenant to fence, but was founded on the written contract, and was therefore sufficient. 3. APPEAL-EXCEPTIONS TO CONCLUSIONS OF

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A covenant in a contract for the sale of land to a railroad for a right of way, by which the railroad agreed, before taking possession of the land, to construct a sufficient fence along the same as a condition precedent, operated as a covenant running with the land, for the failure to perform which the railroad was liable in damages to a tenant of a subsequent grantee of the adjoining land.

[Ed. Note.--For cases in point, see vol. 14, Cent. Dig. Covenants, § 78.]


It was immaterial that such covenant was not carried forward into a deed conveying such right of way to the railroad company.

Appeal from Superior Court, Howard County; B. F. Harness, Judge.

Action by Phillip Harbaugh against the Indianapolis Northern Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. A Van Osdol and Blacklidge, Shirley & Wolf, for appellant. John W. Cooper and Thomas S. Gerhart, for appellee.

MYERS, J. Appellee in the court below instituted this action against appellant to recover damages for the death of a cow, averred to have been poisoned by drinking oil and eating paints. It is conceded that the cause was tried upon the second paragraph of the amended complaint. A demurrer to this paragraph was by the court overruled and this ruling is here assigned as error. So far as any question for our consideration is concerned, a general denial formed the issue. The cause was tried by the court, special findings of fact made and conclusions of law stated thereon, and judgment in favor of appellee for $63.

1. We have carefully examined the amended paragraph of the complaint, also the special findings, and in our opinion the facts as found by the trial court are in many particulars more favorable to appellant than the facts averred in the complaint. Therefore, except in one particular, which we will hereinafter notice, the error grounded upon the exception to the conclusion of law fully presents the question, arising upon such demurrer. Indiana, etc., Ins. Co. v. Bender, 32 Ind. App. 287, 69 N. E. 691; Ross v. Van Natta, 164 Ind. 557, 558, 74 N. E. 10, and cases there cited. The particular averment in the complaint, and on which there is no finding, and to which appellant has given considerable attention in its argument, on the theory that it makes the complaint bad, is as follows: "That the said Jones and Jones did on the 1st day of November, 1902, in compliance with the terms of said written contract, convey by warranty deed to said traction company, the last above described tract." The land to which this averment refers is the tract described in the complaint and sold to appellant. Appellant, in support of its contention, predicates its argument upon the theory that the contract is executory, and therefore not sufficient to create a covenant running with the land, also that the averment is a mere conclusion, and does not show the covenant to fence was carried forward into the deed, and without the deed, or a copy thereof showing that fact, the complaint is insufficient to withstand a demurrer. If this were an action founded upon the deed, then it would be necessary to make the same, or a copy thereof, a part of the complaint; but, as we construe the pleading, it is built upon the theory of an action to recover damages for the wrongful killing of appellee's cow. We are controlled and supported in our conclusion 78 N.E.-6

reached upon this pleading by many decisions. Toledo, etc., R. R. Co. v. Fenstemaker, 3 Ind. App. 151, 29 N. E. 440; Conger v. Chicago, etc., R. R. Co., 15 Ill. 366; Toledo, etc., R. R. Co. v. Burgan, 9 Ind. App. 604, 37 N. E. 31; Lake Erie, etc., Ry. Co. v. Power, 15 Ind. App. 179, 43 N. E. 959. The facts pleaded determine the theory and legal worth of a pleading. Balue v. Taylor, 136 Ind. 368, 373, 36 N. E. 269; Pennsylvania Company v. Clark, 2 Ind. App. 146, 151, 27 N. E. 586; Monnett v. Turpie, 132 Ind. 482, 32 N. E. 328. In the case last cited, it is said "the complaint will, if possible, be given such construction as to give full force and effect to all of its material allegations and such as will afford the pleader full relief for all injuries stated in his pleading." In this state a court having appellate jurisdiction, and having before it the record in the cause, may refer to "the entire record and briefs of counsel on both sides" in order to determine upon what theory the complaint proceeded. Carmel, etc., Imp. Co. v. Small, 150 Ind. 427, 435, 47 N. E. 11, 50 N. E. 476. The written contract requiring appellant, to fence its right of way before it took possession of the land, as a part consideration for the sale and purchase thereof, imposed upon appellant a duty, which, by the averments of the complaint, it failed to discharge, and if such failure brought about the injury complained of, and in the manner shown by the complaint, and it being further averred, "that said Jones and Jones sold and conveyed by good and sufficient warranty deed to one Thomas C. Malaby all the rights and. covenants running with the remaining unsold portion of the said first above described land, and especially the covenants of said Traction Company to said Jones and Jones," and that appellee had leased and was in possession, as a lessee of Malaby, under the ruling of this court in Toledo, etc., R. R. Co. v. Burgan, supra, the paragraph, in our opinion, should be held to state a cause of action, and the contract or deed to be proper evidence tending to uphold it. Lake Erie, etc., Ry. Co. v. Power, 15 Ind. App. 183, 43 N. E. 959.

2. The substance of the facts found may be stated as follows: On May 13, 1902, appellant was an Indiana corporation, and on June 15, 1903, was the owner of a line of railway from the city of Kokomo to the city of Logansport, Ind. That on said May 13th Hannah Jones and Silas W. R. Jones were the owners of a certain tract of grazing land in Howard county, Indiana, and which was on that date enclosed by a good substantial fence; that on said last date said owners agreed in writing to sell appellant a portion of said tract of land, which instrument, omitting the description of the land sold, is as follows:

"H. L. Bull, Real Estate Agent, Kokomą, Irdiana. Greentown, Indiana, May 13, 1902. For three and one-half acres more or less in

section 25, township 24 north of range 3 east in Howard county, Indiana, I will take $568.59 for, upon the following terms and conditions, to wit: The boundary of said land is as follows: [Then follows a description of the land.] I will make warranty deed for same and furnish abstract showing a perfect title to same, and give possession of the same on and after November 1, 1902. The parties buying said land are to build a good, woven wire fence on the east line of said tract of land, using cedar posts in the construction of said fence, and they are not to take possession of said ground in any manner whatever until said fence is fully completed, and the consideration for said land is paid in full. This proposition good and binding on me for 10 days from this date. May. 13, 1902, at 5 p. m. Hannah Jones. S. W. R. Jones." "H. L. Bull, Real Estate Agent, Kokomo, Indiana, May 23, 1902. We herewith accept the above proposition of Hannah Jones and S. W. R. Jones, and have this day paid you $50.00 to bind said proposition, and pay balance of money on or before November 1, 1902, or forfeit the $50.00 this day paid you. Accepted at 1:30 p. m. Indianapolis Northern Traction Co., by J. H. Lefler, Its Agent." On November 10, 1902, Jones and Jones sold and conveyed to one Thomas C. Malaby, by deed containing covenants of general warranty, a part of said original tract, and abutting the east line of the tract embraced in said agreement. On May 15, 1903, Malaby rented and leased to appellee the tract so purchased from Jones and Jones for grazing purposes, and from said last date to June 15, 1903, he continuously pastured his cow thereon. That prior to the month of May, 1903, but during that year, appellant took possession of the right of way, as purchased from Jones and Jones, and began the construction of its interurban railroad over the same, before constructing a fence alone the east line of such right of way, and thereafter, and until June 15, 1903, and without any fence on said line, and knowing that cattle were being pastured upon said leased premises, it placed large quantities of materials, paints, and oils thereon, as well as on said leased premises, and on said last date had freshly painted trolley poles and large quantities of green paint and oil deposited thereon, which were exposed and unguarded, and which paint and oil was then allowed and permitted to be scattered over and upon the grass growing on its right of way and the premises so leased, without notifying appellee that it was so using said paints and oils, and appellee had no knowledge that it had or was using the same. That said east line of said right of way is the west line of the premises so leased, and on which line there was no fence. That near the line dividing the land of Malaby and appellant was a board fence, through which Malaby, after receiving his conveyance, had caused an opening to be made large enough to allow cattle to pass

through the same, and which opening remained until after the happening of the occurrence herein complained of. That by reasonable care appellee could have known of said opening in the fence onto the land where appellant was prosecuting its work and had its paints and oils, but made no effort to prevent said animal from passing through said opening and onto the premises where the paints were situated. That said paints and oils were accessible to appellee's cow only by reason of said opening. That appellee, during all the time he was so pasturing said animal, as aforesaid, knew that appellant was engaged in the construction of its railroad over its premises, west of said fence, and that said road was not completed at the time said animal so ate of said oils and paints, which caused her death.

On November 9th, the court filed its special findings. The next month, December 15th, and at the same term, appellant filed its motion for a new trial, which on the same day was overruled, and appellant ex-· cepted. Following this ruling, and on said last date, the record in this cause shows that the court stated and filed its conclusions of law "upon the facts heretofore found and set out in the record." The conclusion reads as follows: "That the plaintiff is entitled to recover of the defendant, the Indianapolis Northern Traction Company, the sum of sixtythree dollars." To this conclusion of law appellant at the time reserved its exception. Thereupon the court rendered judgment in accordance with its conclusion. Appellee insists that no question is presented by the latter exception. Citing Dickson v. Rose, 87 Ind. 103, and Smith v. McKean, etc., 99 Ind. 101. In those cases it appears that the exception to the conclusions of law was not taken at the time the conclusions were stated, and not until after the trial court had overruled a motion for a new trial. While in the case at bar, the record discloses that the exception was taken at the time the court stated its conclusions of law, and is sufficient to raise any question which may be presented thereon. This exception is an admission that all facts have been fully and correctly found. National State Bank v. Sandford Fork and Tool Co., 157 Ind. 10, 60 N. E. 699; Halstead v. Sigler (Ind. App.) 74 N. E. 257.

The error assigned on the exception to the conclusion of law presents the controlling question for our decision. The complaint avers the execution of a deed "in compliance with the contract." As to this averment, the special findings are silent. If it was necessary for appellee to aver and prove the execution of the deed containing covenants to build a fence, as stipulated in the contract, as an ultimate fact, and such fact was not found, this failure would inure to the benefit of appellant, and be a sufficient reason for a reversal. State Bank v. Backus, 160 Ind. 682, 693, 67 N. E. 512; Coffinberry v. Mc

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