The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-07-19
THE COURT RECORD.
Supreme Court-July II.

Hon. William E. Niblack. Chief Justice.
TAX TITLE-PERsoNAL PRoPERTY-BURpEN OF
PROOF.
9.640. John G. Earl VS.. Oscar A. Slmons.
collars, J.-Under former tax laws IL has been
held tnat one claiming under tax title should
show substantial compliance with every pro-
vision OF the law by winch the sale was brought
about Sections 254 and 80 of the present law
! limit the proof required of the holder OF the tax
deed, nut DO not relieve MN entirely OF the bur-
] den of proving portions of the proceedings lead
/ ing to the sale and deed. Taken together they
! seem to relieve him of the necessity of proving
that the proceedings We're regular IN unsubstan-
tai matters of form. In such particulars the
| burden seems to be upon the party claiming adj
Versely to the title establish the negative
ana TO prove atfrmatlvely that the taxes were
paid before the sale, or during the time allowed
Tor redemption. Section 254 does not mean that
tender of all legal taxes must be made i'll order
| TO lnValldate a sale, although the owner may
/ have had personal property IN the county at the
| time OF the sale, out OF which the taxes might
| have been made. This provision must be
/ he'd TO apply to cases where the owner had
| personal property out OF which the tax might
| have been made Constituting the whole act to-
| gether it Inust be held that tue burden is upon
| the holder of the tax deed to prove that at the
| time of the sale the owner of the land had no
| personal property out of which the taxes might
have been made 81 Ind, 335,495; II i'd, $780,
a ID, 5I5.i Without.sucn proof the sale is void.
Sector 200 OF the tax law OF 1872 applies only
| 20 actions brought TO recover the possession Of
land sold for taxes and not to actions 20 quiet
| the title to lands sold (So Ind, 449.) To
|
not apply. Judgment affirmed.
RAILRoADs-RIGHT OF wAY-EsTATE ACQUIRED.
1888. Martha Prather ct al. Va. Western
Union Telegraph Company ct al. Bartholomew
Z. c.
HOwk, 1.-The main questions presented in
this case are: a. What IL the width of the
right of way acquired by the Jacksonville Rail
road Company IN tine land of appellants, and
~ was the estate acquired fee simple
or an easement merely? His Honor
reviews the various acts of the Legislature
providing tor the Incorporation of the company,
and concludes THAT the real estate taken is held
in fee simple and not rs easement. The com
pany was invested with all the rights and pow
ers necessary for the construction repair of u
railroad, mot exceeding sixty feet wide, with
many sets OF tracks as the president aud directors
may deem necessary" etc. III section five OF the
amendatory act, OF 1919, 1t was provided that for
the purpose Of constructing said road the COIN
panF was authorized to enter upon, take aud
hold i'll fee simple ali real estate, etc. and section
three gave IL the power TO sell and convey snch
real estate and tenemeuts. Constituting all the
provisions of the various acts together, it must
be neid that the company by its entry ana con-
structiOn of the road took in fee simple the full
namely, sixty feet. 1t might have limited its "A D.
preparation to less than that, but not having
done 50, the full width fixed by the statute was
obtained. "A Met, Mass 564; i'd, 553; 10
Cush, g. 81 N. Y, $685. 56 Ind, 310.) The title
and extent of land thus acquired vested in the
Company when the two roads were after
wards consolidated. If the road acquired
a fee-simple title to strip of land
sixty feet wide, it of course had the
right to erect itself, by contract with the tefe-
graph company, such telegraph poles as were
necessary along the line of its road, within the
limits of the land SO appropriated. Judgment
affirmed.