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his brother, was an owner of the property with carts and carriages over his meadow, in 1881, testified that he and his brother did for 20 years successively, unless some agreenot claim any easement on the berm of ment had been made between the parties to the canal.
that effect.' Crimes v. Smith, 12 Co. 4; Bedle There undoubtedly has been a long period v. Beard, Id. 5; Mayor of Kingston v. Jorner, vf user of the land in question for the pur-Cowp. 102; Parker v. Baldwin, 11 East, 448. poses of a way, but at least down to the 'But,' says a learned judge of the Supreme time the canal fell into disuse, we think Court of the United States, 'presumptions of that it can be affirmed with confidence that this nature are founded upon the consideraIt does not appear that appellee or her grant- tion, that the facts are such as could not, prs had acquired the servitude claimed. Pre according to the ordinary course of human scriptive easements have never been regarded affairs, occur, unless there was a transmutaas governed by the statute of limitations con- tion of title to, or an admission of an existcerning ejectment, but until the regulation of ing adverse title in the party in possession. the matter by statute in England it was the They can, therefore, never arise where all practice of the judges, following the analogy the circumstances are perfectly consistent of the statute of limitations, to submit to ju- with the nonexistence of a grant.' Rickard v. ries the question whether after a 20-year pos- Williams, 7 Wheat. (U. S.) 109, 5 L. Ed. 398." session, under circumstances now recognized as If the facts and circumstances of a case lead requisite to make out a prescription, a pre- to the conclusion that the user was merely sumption of a grant should be drawn. With a permissive, they are fatal to the prescription. majority of the courts of this country, how- Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669, ever, it appears that from a mere inference of 6 L. R. A. 159. “The inference of a grant, fact the doctrine has hardened into a pre- if raised at all, is derived from a claim on sumption juris et de jure, or conclusive evi- the one side and a yielding on the other of dence of right. Mitchell v. Parks, 26 Ind. 354; that which can properly only be created by Miller v. Richards, 139 Ind. 263, 38 N. E. 854; grant." 2 Washburn, Real Property, *42. 3 Kent, Com. 444; 4 Cyc. 1146, and cases cited. Where a space is designedly left open by the It seems probable that our statute concerning owner, either for his own convenience or to easements (section 5746, Burns' Ann. St. 1901) enable his customers to resort to him, the preis but declaratory of this doctrine.
sumption ordinarily is that a use of such space The owner of the servient tenement may by an individual, even for his own purposes, not show that in fact there was no grant, but is permissive. 14 Cyc. 115; Kilburn v. he may show by facts and circumstances Adams, 7 Metc. (Mass.) 33, 39 Am. Dec. 754. that there was not such a holding as would And the fact that a use was one which was ripen into a legal title. 14 Cyc. 1147. It is shared with the public gives rise, in the abundoubted that as a general rule the open sence of evidence to the contrary, to a preand continuous use of a way, apparently as sumption that it was not under an exclusive owner, for the statutory period casts upon or particular claim of right. 14 Cyc. 1157. the servient owner the burden of explaining The only fact that might seem to distin. that possession (Rennert v. Shirk, 163 Ind. guish this case from the doctrine last stated 542, 72 N. E. 546); but, as the doctrine of is that there was a portion of the alleged prescription is founded on the presumption way which appellee's grantors used that was of a grant, the person against whom it is beyond the portion of the berm which the asserted may appeal to facts and circumstan- public resorted to in connection with the ces for the purpose of showing that the use transportation of freight. But the question was not under claim of right. In Arnold v. then arises, an adequate reason for leaving Stevens, 24 Pick, (Mass.) 106, 35 Am. Dec. the berm uninclosed appearing, whether a use 305, the court said: “An enjoyment with the of it to the west of the traveled way, where consent, or consistently with the rights, of the berm was too narrow to admit of unload. the true owner, has no tendency to prove a ing freight and yet leave room for wagons to conveyance from him. Bealey V. Shaw, 6 pass and repass,was so far burdensome to the East, 214; Keene v. Deardon, 8 Id. 263. The canal company as to warrant the supposition very ground of the presumption is the diff- that there was an acquiescence in a hostile culty or impossibility of accounting for the claim. Of course, it is not necessary to prove possession or enjoyment without the exist- any actual damage to the owner; but, particuence of a grant or some other lawful convey- larly in the case of a small piece of land ance. Devereux v. Duke of Norfolk, 1 Price, which is wholly unavailable for the use of the 247. But, if the possession can be accounted owner, where the travel may reasonably be for consistently with the title, no presump- referred to an implied license, it would seem tion arises. 2 Saund. 175, note; Daniel v. that the use should be treated as permissive. North, 11 East, 372; Wood v. Veal, 5 Barn. 2 Washburn, Real Property, *44; Jesse & Ald. 454. "The presumption of a deed from French, etc., Co. v. Forbes, 129 Ala. 471, 29 long usage is for the furtherance of justice South. 683, 87 Am. St. Rep. 71; Donnell v. and for the sake of peace, when there has Clark, 19 Me. 174; 14 Cyc. 1155; 22 Am. & Eng. been a long exercise of an adverse right.' Ency. of Law, 1200. Thus it was said by For instance, it cannot be supposed that any | Elliott, J., in Parish v. Kaspare, 109 Ind. 586, man would suffer his neighbor to use a way 10 N. E. 109: “An owner of land is not
mitting, as a favor, another to pass over his liverypbond. Held, that a delivery bond does
shorn of any of his rights by merely per- of an execution by the officer that he has a de
, lands. In order to establish a prescriptive
to discharge any or of
the judgment creditor, and hence a surety on right, something more than mere permissive a delivery bond, subrogated to the creditor's user must be shown. God. Easm. (Bennett's right, is entitled to have his claim against a Ed.) 134. The use of land for the purpose of
receiver of the execution defendant allowed as a
preferred claim. passing over it is not inconsistent with the right of ownership; and where there is no Appeal from Circuit Court, Marion Couninconsistency between the use and the owner
ty; H. C. Allen, Judge. ship, there can be no prescriptive right.” Proceedings on a claim of Walter J. HubWe deem it clear that, down to the time that bard against the Security Trust Company, the canal was abandoned, there was no show
receiver, and others. From a judgment that ing made of a user which would warrant the the claim was not a lien on the assets in the conclusion that it was adverse, and as there
hands of the receiver, the claimant appeals. was no evidence that conditions had mate
Reversed and remanded. rially changed, so as to render the exercise
C. B. Clarke, W. C. Clarke, and M. M. of the right a burdensome one, we are of Bachelder, for appellant. Frank C. Gronopinion that the user did not cast a burden
inger, for appellees. on appellant to explain it. So much for the matter in the absence of
ROBY, J. The question for decision grows direct proof of an adverse holding. Upon
out of the following facts: The Varney Electhat point it is to be recollected that the
tric Company in 1904 obtained a judgment in witnesses, whom appellee offered, disclaimed
a justice of the peace court of Marion county the idea that there was any claim of right in
against the Topp Hygienic Milk Company themselves, as distinguished from the public.
for $117.29. An execution was issued thereHer own testimony shows that she and her
on in due form, and placed in the hands of grantors “merely used it”; that they merely
a constable, who ļevied upon a team of hors“took the right to go there all the time, because it seemed to be the only way to get
es, harness, and wagou belonging to said
milk company, which thereupon gave a deto the stable." If evidence of this character
livery bond therefor, the same being executed can be said to exert any force, its tendency
by appellant as its surety, and by virtue of must be to break down the claim of an ad
which said company retained possession of verse possession.
said property. It failed to pay the value Judgment reversed, with a direction to
of or deliver said property as required by grant a new trial.
the terms of said bond, and the electric company, by reason of said default, recovered
judgment upon said bond against appellant (38 Ind. A. 156)
for the sum of $144.37, and caused an exeHUBBARD v. SECURITY TRUST CO. et al.
cution against him to issue thereon, by rea(No. 5,718.)
son of which he was compelled to and did (Appellate Court of Indiana, Division No. 2.
pay the amount of said judgment and costs, May 29, 1906.)
A receiver for the milk company had, in the 1. RECEIVERS—TITLE TO PROPERTY. Where an execution had been levied on
meantime, been appointed and taken pos- : certain property, and it was returned to the
session of the horses, harness, and wagon execution defendant on the giving of a delivery above specified and sold the same for $180. bond, a receiver of the execution defendant
Nothing has been paid by either the milk occupies the same position with regard to the property as the execution defendant would have
company or receiver upon said judgment, nor done.
to appellant, who intervened in the matter [Ed. Note.-For cases in point, see vol. 42, of said receivership and petitions the court Cent. Dig. Receivers, $ 124.]
for an order requiring the receiver to pay him 2. SUBROGATION-PRINCIPAL AND SURETY- the amount paid by him as aforesaid. The DELIVERY BOND.
court found upon these facts that appellant's Where a surety on a delivery bond for property levied on was required to pay the
claim was no lien upon the assets in the amount of the judgment, he is subrogated to hands of the receiver, and allowed it as a all the rights of the original creditor as against general claim. Appellant's position is that the property or its proceeds.
he is entitled to have said amount allowed [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Subrogation, $ 17.]
as a preferred claim.
The receiver occupies no different position 3. SAME-EFFECT-BENEFIT OF REMEDIES OF CREDITOR.
with regard to the property released by said Burns' Ann. St. 1901, § 1576, provides that delivery bond or its proceeds than the milk an execution operates as a lien on the personal company would do had no receiver for it property of the judgment debtor liable to be seized. Sections 756, 1582, provide that prop
been appointed. The effect of a receivererty taken under execution may be returned
ship is to suspend the ordinary remedies for to the execution defendant on the giving of a the enforcement of liability and render a re delivery bond. Section 1583 provides that on sort to the court having jurisdiction therein, the condition of the bond being broken, the execution plaintiff may prosecute his remedy there
necessary. McAnally v. Glidden, 30 Ind. on or by alias execution. Section 1578 provides
App. 22, 65 N. E. 291. The doctrine of sub
. that an alias writ must be issued on the return | rogation is independent of any merely con.
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. 781, 11 L. R. A. 740.
Judgment reversed, and cause remanded, with instructions to sustain motion for a new trial and further proceedings.
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 ap pellant 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 surety ship 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, 88 756, 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 bis right to the trial court for adjudication. He had a 'right to appeal from any order adverse to his interest. He was entitled, not
(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.] 2. RAILROADS - KILLING STOCK - RIGHT OF WAY-FAILURE TO FENCE-COMPLAINT.
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 cf 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 LAW-SCOPE.
Where an exception was reserved to the court's conclusion of law at the time such conclusion was stated, such exception was sufficient to raise any question which might be presented thereon. 4. TRIAL-FINDINGS OF COURT-EXCEPTIONS -EFFECT.
An exception to the court's conclusion that plaintiff was entitled to recover from the defendant a certain sum of money operated as an admission that all the facts had been fully and correctly found. 5. COVENANTS-COVENANTS RUNNING WITII LAND-RAILROAD RIGHT OF WAY-AGREEMENT TO FENCE.
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.] 6. SAME-DEEDS-COVENANTS.
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 Coun- reached upon this pleading by many decity; B. F. Harness, Judge.
sions. Toledo, etc., R. R. Co. v. Fenstemaker, Action by Phillip Harbaugh against the 3 Ind. App. 151, 29 N. E. 410; Conger v. ChiIndianapolis Northern Traction Company. cago, etc., R. R. Co., 15 Ill. 366; Toledo, etc., From a judgment for 'plaintiff, defendant ap- R. R. Co. v. Burgan, 9 Ind. App. 604, 37 N. peals. Affirmed.
E. 31; Lake Erie, etc., Ry. Co. v. Power, 15 Jas. A Van Osdol and Blacklidge, Shirley
Ind. App. 179, 43 N. E. 959. The facts plead& Wolf, for appellant. John W. Cooper and
ed determine the theory and legal worth of Thomas S. Gerhart, for appellee.
a pleading Balue v. Taylor, 136 Ind. 368,
373, 36 N. E. 269; Pennsylvania Company v. MYERS, J. Appellee in the court below Clark, 2 Ind. App. 146, 151, 27 N. E. 586; instituted this action against appellant to Monnett v. Turpie, 132 Ind. 482, 32 N. E. recover damages for the death of a cow, 328. In the case last cited, it is said "the averred to have been poisoned by drinking complaint will, if possible, be given such oil and eating paints. It is conceded that construction as to give full force and effect the cause was tried upon the second para- to all of its material allegations and such as graph of the amended complaint. A demur- will afford the pleader full relief for all inrer to this paragraph was by the court over- juries stated in his pleading.” In this state ruled and this ruling is here assigned as a court having appellate jurisdiction, and error. So far as any question for our con- having before it the record in the cause, may sideration is concerned, a general denial refer to "the entire record and briefs of counformed the issue. The cause was tried by sel on both sides” in order to determine upon the court, special findings of fact made and what theory the complaint proceeded. Carconclusions of law stated thereon, and judg- mel, etc., Imp. Co. v. Small, 150 Ind. 427, ment in favor of appellee for $63.
435, 47 N. E. 11, 50 N. E. 476. The written 1. We have carefully examined the amend- contract requiring appellant. to fence its ed paragraph of the complaint, also the spe- right of way before it took possession of cial findings, and in our opinion the facts as the land, as a part consideration for the found by the trial court are in many par
sale and purchase thereof, imposed upon apticulars more favorable to appellant than pellant a duty, which, by the averments of the facts averred in the complaint. There- the complaint, it failed to discharge, and if fore, except in one particular, which we will such failure brought about the injury comhereinafter notice, the error grounded iipon plained of, and in the manner shown by the exception to the conclusion of law fully the complaint, and it being further averred, presents the question, arising upon such “that said Jones and Jones sold and condemurrer. Indiana, etc., Ins. Co. v. Bender, veyed by good and sufficient warranty deed 32 Ind. App. 287, 69 N. E. 691; Ross v. Van to one Thomas C. Malaby all the rights and. Natta, 164 Ind. 557, 558, 74 N. E. 10, and covenants running with the remaining uncases there cited. The particular averment sold portion of the said first above described in the complaint, and on which there is no land, and especially the covenants of said ,
Traction Company to said Jones and Jones," considerable attention in its argument, on and that appellee had leased and was in posthe theory that it makes the complaint bad, session, as a lessee of Malaby, under the is as follows: "That the said Jones and ruling of this court in Toledo, etc., R. R. Co. Jones did on the 1st day of November, 1902, v. Burgan, supra, the paragraph, in our in compliance with the terms of said writ- opinion, should be held to state a cause of
a ten contract, convey by warranty deed to action, and the contract or deed to be proper said traction company, the last above de- evidence tending to uphold it. Lake Erie, scribed tract.” The land to which this aver- etc., Ry. Co. y. Power, 15 Ind. App. 183, 43 ment refers is the tract described in the com- N. E. 959. plaint and sold to appellant. Appellant, in 2. The substance of the facts found may support of its contention, predicates its ar- be stated as follows: On May 13, 1902, apgument upon the theory that the contract pellant was an Indiana corporation, and on is executory, and therefore not sufficient to June 15, 1903, was the owner of a line of create a covenant running with the land, also railway from the city of Kokomo to the city that the averment is a mere conclusion, and of Logansport, Ind. That on said May 13th does not show the covenant to fence was Hannah Jones and Silas W. R. Jones were carried forward into the deed, and without the owners of a certain tract of grazing land the deed, or a copy thereof showing that in Howard county, Indiana, and which was fact, the complaint is insufficient to with- on that date enclosed by a good substantial stand a demurrer. If this were an action fence: that on said last date said owners founded upon the deed, then it would be agreed in writing to sell appellant a ornecessary to make the same, or a cory there. tion of said tract of land, which instrument, of, a part of the complaint; but, as we con- omitting the description of the land sold, is strue the pleading, it is built upon the theory as follows: of an action to recover damages for the “H. L. Bull, Real Estate Agent, Kokoma, Trongful killing of appellee's cow. We are Irdiana. Greentown, Indiana, May 13, 1902. controlled and supported in our conclusion For three and one-half acres more or less in
finding, and to which appellant has given Tr
section 25, township 24 north of range 3 east through the same, and which opening rein Howard county, Indiana, I will take $568.- mained until after the happening of the oc59 for, upon the following terms and condi- currence herein complained of. That by reaţions, to wit: The boundary of said land is sonable care appellee could have known of as follows: [Then follows a description of said opening in the fence onto the land the land.) I will make warranty deed for where appellant was prosecuting its work same and furnish abstract showing a perfect and had its paints and oils, but made no title to same, and give possession of the same effort to prevent said animal from passing on and after November 1, 1902. The parties through said opening and onto the prenibuying said land are to build a good, woven ises where the paints were situated. That wire fence on the east line of said tract of said paints and oils were accessible to apland, using cedar posts in the construction pellee's cow only by reason of said opening. of said fence, and they are not to take pos- That appellee, during all the time he was session of said ground in any manner what- so pasturing said animal, as aforesaid, knew ever until said fence is fully completed, and that appellant was engaged in the constructhe consideration for said land is paid in full, tion of its railroad over its premises, west of This proposition good and binding on me cor said fence, and that said road was not com10 days from this date. May. 13, 1902, at 5 pleted at the time said animal so ate of p. m. Hannah Jones. S. W. R. Jones.” “H. said oils and paints, which caused her death. L. Bull, Real Estate Agent, Kokomo, Indiana, On November 9th, the court filed its speMay 23, 1902. We herewith accept the above cial findings. The next month, December proposition of Hannah Jones and S. W. R. 15th, and at the same term, appellant filed Jones, and have this day paid you $50.00 its motion for a new trial, which on the to bind said proposition, and pay balance of same day was overruled, and appellant exmoney on or before November 1, 1902, or cepted. Following this ruling, and on said forfeit the $50.00 this day paid you. Ac- last date, the record in this cause shows that cepted at 1:30 p. m. Indianapolis Northern the court stated and filed its conclusions of Traction Co., by J. H. Lefler, Its Agent.” law "upon the facts heretofore found and set On November 10, 1902, Jones and Jones sold out in the record." The conclusion reads as and conveyed to one Thomas C. Malaby, by follows: "That the plaintiff is entitled to redeed containing covenants of general war- cover of the defendant, the Indianapolis Northranty, a part of said original tract, and ern Traction Company, the sum of sixtyabutting the east line of the tract embraced three dollars." To this conclusion of law in said agreement. On May 15, 1903, Malaby appellant at the time reserved its exception. rented and leased to appellee the tract so Thereupon the court rendered judgment in purchased from Jones and Jones for grazing accordance with its conclusion. Appellee inpurposes, and from said last date to June 15, sists that no question is presented by the 1903, he continuously pastured his cow there- latter exception. Citing Dickson v. Rose, 87 on. That prior to the month of May, 1903, Ind. 103, and Smith v. McKean, etc., 99 Ind. but during that year, appellant took posses
101. In those cases it appears that the exsion of the right of way, as purchased from
ception to the conclusions of law was not Jones and Jones, and began the construction taken at the time the conclusions were statof its interurban railroad over the same, be- ed, and not until after the trial court had fore constructing a fence alone the east overruled a motion for a new trial. While line of such right of way, and thereafter, and in the case at bar, the record discloses that until June 15, 1903, and without any fence the exception was taken at the time the on said line, and knowing that cattle were court stated its conclusions of law, and is being pastured upon said leased premises, sufficient to raise any question which may it placed large quantities of materials, paints, be presented thereon. This exception is an and oils thereon, as well as on said leased admission that all facts have been fully and premises, and on said last date had freshly correctly found. National State Bank v. painted trolley poles and large quantities of Sandford Fork and Tool Co., 157 Ind. 10, 60 green paint and oil deposited thereon, which N. E. 699; Halstead v. Sigler (Ind. App.) were exposed and unguarded, and which 74 N. E. 257. paint and oil was then allowed and permitted The error assigned on the exception to the to be scattered over and upon the grass conclusion of law presents the controlling growing on its right of way and the prem- question for our decision. The complaint ises so leased, without notifying appellee avers the execution of a deed “in compliance that it was so using said paints and oils, and with the contract.” As to this averment, the appellee had no knowledge that it had or was special findings are silent. If it was necesusing the same. That said east line of said sary for appellee to aver and prove the exeright of way is the west line of the premises cution of the deed containing covenants to so leased, and on which line there was no build a fence, as stipulated in the contract, fence. That near the line dividing the land as an ultimate fact, and such fact was not of Malaby and appellant was a board fence, found, this failure would inure to the benethrough which Malaby, after receiving his fit of appellant, and be a sufficient reason for conveyance, had caused an opening to be a reversal. State Bank v. Backus, 160 Ind. made large enough to allow cattle to pass ( 682, 693, 67 N. E. 512; Coffinberry v. Mc