48 Ind. App. 668 | Ind. Ct. App. | 1911
Appellant, who was plaintiff below, brought this action against appellee, to recover damages for the breaking down of a tile-drain on the right of way and under the tracks of the appellee. After alleging that appellee is a corporation operating a line of railway from the city of Anderson, Indiana, south through Rush county, and over and through the lands of appellant in said county, it is averred “that before said railway was constructed there was a good and sufficient tile drain across the lands of plaintiff, running from a westerly to an easterly direction to the lands of Frederick Leisure, and thence to Blue river; that said drain was ample and sufficient properly to dram said lands of plaintiff, but that said defendant constructed its said railway across said lands from a northeasterly to a southwesterly direction over and across said tile drain; that on or about April 1, 1906, said railway company negligently, wilfully and purposely broke the tile in said drain at a point under its main track, on its right of way on said lands, thereby causing said drain to cave in and obstruct the free flow of water therethrough; that, as a further obstruction to the flow of water through said drain, said railway company, by its officers, agents and employes, filled
Appellee, demurred to this complaint for want of facts sufficient to constitute a cause of action, which demurrer was overruled by the court. The answer was in two paragraphs. The first was in denial, and the second set out facts relating to the time, terms and manner of acquiring the right of way across appellant’s farm, and the right secured to appellee by the deed of conveyance. A demurrer was addressed to the second paragraph of answer, and was not only overruled, but was carried back by the court, and sustained to the complaint.
Appellant refused to plead further and elected to stand, by his exception to the action of the court in overruling his demurrer to the second paragraph of answer, and carrying said demurrer back, and sustaining it to the complaint. Judgment was rendered against appellant for costs.
Several errors are assigned, but the error argued and relied on for reversal in this court relates to the overruling of appellant’s demurrer to the second paragraph of answer, and the action of the court in carrying said demurrer back, and sustaining it to the complaint.
‘ ‘ ‘ The pleader is not at liberty to leave his pleading open to different constructions, and then take his choice between them. ’ [Van Etten v. Hurst (1884), 6 Hill 311, 41 Am. Dec. 748.] Pacts must be stated directly and positively, and not indirectly nor in the alternative.’’ Langsdale v. Woollen (1889), 120 Ind. 78, 80.
In the ease of Miller v. Miller, supra, at page 608, the court said: “Every complaint must proceed upon some single, definite theory. This theory can be gathered only from the general scope and tenor of the pleading. Whether a complaint charges a wilful tort, or negligent act, must be
In the case of Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, it is said: “There is a clear distinction between cases which count upon negligence as a ground of action and those founded upon acts of aggressive wrong or wilfulness, and a pleading should not be tolerated which proceeds upon the idea that it may be good either for a wilful injury or as a complaint for an injury occasioned by negligence. It should proceed upon one theory or the other, and is to be judged from its general tenor and scope.” In the same ease, at page 387, it is said: “It is only necessary to charge, in a complaint which seeks redress for a wilful injury, that the injurious act was purposely and intentionally committed, with the intent wilfully and purposely to inflict the injury complained of.”
In the case of Louisville, etc., R. Co. v. Schmidt (1886), 106 Ind. 73, 74, it is said: “A pleading is to be judged from its general scope, and not from detached phrases or epithets cast into it.” To the same general effect are the following eases: Phenix Ins. Co. v. Rogers (1894), 11 Ind. App. 72, 75; Hasselman v. Japanese Develop. Co. (1891), 2 Ind. App. 180, 188; Carter v. Lacy (1891), 3 Ind. App. 54, 57; Cleveland, etc., R. Co. v. Stuart (1900), 24 Ind. App. 374; F. C. Austin Mfg. Co. v. Clendenning (1899), 21 Ind. App. 459; Terre Haute, etc., R. Co. v. McCorkle (1895), 140 Ind. 613, 622; Chicago, etc., R. Co. v. Bills (1885), 104 Ind. 13, 16; Bremmerman v. Jennings (1885), 101 Ind. 253, 257; Western Union Tel. Co. v. Reed (1884), 96 Ind. 195, 198; Speeder Cycle Co. v. Teeter (1897), 18 Ind. App. 474; Richardson v. League (1899), 21 Ind. App. 429; Mescall v. Tully (1883), 91 Ind. 96, 99.
This subject was fully discussed in the well-considered ease of Cleveland, etc., R. Co. v. Huddleston (1899), 21 Ind. App. 621, 69 Am. St. 385, and the principle stated as follows: “An artificial waterway may not be constructed or maintained, except by authority of law, or under a contract, in any case where it imposes a burden upon the property of an adjacent owner.” In the same ease, at page 625, the court quoted with approval the following, from O’Connor v. Fond du Lac, etc., R. Co. (1881), 52 Wis. 526, 9 N. W. 287, 38 Am. Rep. 753: “The company has only obstructed a
The complaint does not state a cause of action, and there was no error in carrying back and sustaining a demurrer thereto.
Judgment affirmed.