Volume 132 — Indiana Appellate Court Reports

1. APPEAL — <italic>Trial — Variance between Pleading and Evidence —</italic> <italic>Amendment.</italic> — On appeal, a variance between the pleadings and the evidence which could have been corrected by amendment in the court below will be deemed to have been made upon appeal even though such amendment was not made. p. 417. 2. EASEMENTS — <italic>Real Property — Title by Prescription.</italic> — Where there has been the use of an easement for twenty years, which is unexplained, the presumption is that it is under a claim of right, and adverse, and is sufficient to establish title by prescription unless such use is contradicted or explained. p. 417. 3. EASEMENTS — <italic>Real Property — License.</italic> — A use which is merely permissive or exercised under a mere license, cannot ripen into an easement. p. 417. 4. EASEMENTS — <italic>Real Property — Evidence — Prescriptive Right.</italic> — To establish the existence of a prescriptive right to an easement or right of way across the land of another, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under claim of right, or it must show such continuous adverse use and with the knowledge and acquiescence of the owner of the servient land. p. 418. 5. EASEMENTS — <italic>Real Property — Necessity — Termination of Right</italic> <italic>of Way.</italic> — The rule that a right of way ceases with the necessity thereto is not applicable to ways acquired by express grant or by prescription. p. 418.

1. APPEAL — <italic>Judgment Invalid on Face — Vacation of Judgment.</italic> — Where the record on its face disclosed that the judgment had been rendered by a different judge than the one before whom the proceedings had been taken, and contained no showing of any change of venue or any manner of qualification or selection of second judge and which disclosed discrepancy between date of judgment as shown on judgment itself and that shown by record entry, the action is fraught with apparent errors, and substantial justice can be subserved only by mandating the vacation of the purported judgment and for further proceedings. p. 578. 2. APPEAL — <italic>Appeal from Void Judgment — Judicial Determination</italic> <italic>of Invalidity.</italic> — An appeal will lie from a void judgment and an appellate tribunal may be successfully resorted to to secure a judicial determination of its invalidity. p. 578.