64 Ind. App. 1 | Ind. Ct. App. | 1916
This is an appeal from a judgment of the
St. Joseph Circuit Court wherein a mandatory injunction was ordered issued against appellant in favor of ap
The errors assigned and relied on by appellants are as follows: (1) The overruling of the demurrer to the first paragraph of amended complaint; (2) the same as to the second paragraph of the amended complaint; (3) error in each of the first and second conclusions of law, respectively; (4) error in overruling appellant’s motion for a new trial.
The new trial was asked on the ground that the decision of the court is contrary to law; that it is not sustained by sufficient evidence; and that each of the special finding of facts is not sustained by sufficient evidence.
The paragraphs of complaint are identical, except the second paragraph of amended complaint contains the averment that the St. Joseph river is a navigable stream, which averment is not in the first paragraph.
It is in substance averred that the South Bend Manufacturing Company is a corporation organized under an act of the general , assembly of Indiana passed in 1842; that the company was authorized to construct a dam across the St. Joseph river at or near the town of South Bend' and to acquire certain property and do-certain things to utilize the water power made available by such dam; that in pursuance of said act, in 1843, said company erected a dam across the river, purchased land along the river,. built raceways, installed water wheels, and did the other things necessary to use the water power; that continuously since that date the company has owned a large interest in said dam and still owns the same and has continuously used and now uses the waters of said river to supply power for manufacturing purposes and the stockholders of said company and other parties under grants from said company also
Appellee contends that no questions are presented by the demurrer to the complaint, for want of a memorandum required by the sixth clause of the act of 1911, Acts 1911 p. 415, §344 Burns 1914.
But in view of our ultimate conclusion in the case and the fact that practically the same questions are raised by the assignment that the court erred in overruling the motion for a new trial, we have concluded to use the finding of facts as the basis of our decision, rather than a statement of the evidence since the ultimate conclusion will be the same in either event.
The finding of facts is very lengthy, goes into many details and in the main follows the averments of the complaint. Some of the facts averred are not controverted. The substance of the finding material to a decision of the question presented is as follows: The St. Joseph river is a navigable stream but has not been navigated since 1852, except by small boats over certain limited portions of the stream; that there are several dams across the stream in the states of Michigan and Indiana which have been in existence more than twenty years, and those at South Bend, Mishawaka and Elkhart have been in existence for more than forty years; that prior to 1870 there was a lock at South Bend by which boats were passed around the dam but its use was discontinued about 1852, and it fell into decay and in 1870 was filled up, since which time no way has existed of passing boats over, across or around the South Bend dam. The South Bend Manufacturing Company in 1843 erected a dam across the St. Joseph river at South Bend, Indiana, and constructed a raceway along the west bank of the river. In 1855 this dam was washed away, but was immediately restored. After its restoration the spillway consisted of two sections, the total
The court also finds that if appellant is restrained and enjoined from further work in the construction of foundations or walls within the above described area and shall remove the foundation walls of the proposed building already constructed by it within said area and all other refuse materials deposited by it within such area, which lies on and above the natural soil of ‘the bed of the St. Joseph river, and is not more than six feet below the surface of the river, at normal stages, and shall remove the retaining wall constructed by it, and if it be perpetually enjoined from obstructing the bed of said stream by depositing debris of any kind therein, then and in such.event the appellees will have substantial relief and said river will have been restored to its natural flow over the above described area, and there will be a substantial and permanent decrease in
Washington street in South Bend, Indiana, is a street running east and west, the south line of which extended, crosses the St.- Joseph river, immediately below the South Bend dam. The next street north of Washington street and down stream is Colfax avenue, which also runs east and west across said river, and since the year 1904 the river has been spanned by a bridge on Colfax avenue constructed of concrete and steel, two piers of which — called “piers land 2” — stand in the channel of the stream and in line with it and the third pier stands at the present water’s edge upon the west bank of the stream! The west race aforesaid prior to 1903 flowed parallel with and on the west side of the river between Washington street and Colfax avenue, and entered the river again at a point approximately fifty feet below, or north of, the north line of Colfax avenue. When the town (now city) of South Bend was laid out and platted in the year 1830, the west shore line of the river as it then existed was marked and shown on a plat marked exhibit A, made a part of this finding. The east or river wall of the power house built by the Oliver Chilled Plow Works is located approximately at the water’s edge on the west shore or bank of the St. Joseph river as the same existed in 1895 and 1896. But this line is east of the original west bank of the water’s edge of said river. The south end of the east or river side of said power house is seventy-eight feet east of the original west shore line of the river, as the same existed at the time the plat pf the original town of South Bend was made. The north end of said power house or the east or river wall is eighty-two feet east of the west bank, or shore line, of the river as the same existed , when 'said plat of the South Bend Manufacturing Company was made and 109 feet east of the west bank, or
The court also found that James Oliver in his lifetime was the chief stockholder and owner of the South Bend Iron Works, a corporation, and was president of its board of directors and its business manager; that said company in 1881 sold to-the South Bend Pulp Company the real estate now owned by appellant; that afterwards the name of South Bend Pulp Company was by due legal proceedings changed to Bissell Chilled Plow Works; that said James Oliver was also the chief stockholder in and president of the Oliver Plow Works from its organization in 1901 and continuously until his death in 1906.
That in 1871 and 1872 the said South Bend Iron Works constructed a brick building on the edge of the water, in the river, which was used for manufacturing purposes; that it dumped refuse material into the edge of the river but the same did not extend out as far as a line extended parallel with the east line of said power house and did not divert the main current of the river; that said iron works also constructed at different times two brick walls — one known as the arch wall on ground originally in the bed of the St. Joseph river; that the wall constructed after the erection of the arch wall was about forty-seven feet north of what is now the north end of the Oliver power house and ten feet west of the east line of said power house if projected north, and extended northwest a distance of sixty feet; that said wall remains except a small portion of the north'' end which was torn down in 1910, when the “market house” was built by appellant.
The wall was about eighty feet east of the west bank
The conclusions of law stated upon the finding of facts are in substance as follows: (1) Appellees are entitled to have the backing of water by appellant upon the South Bend dam, and upon the wheels of the Oliver power house,. abated and restrained, and to have the
The court rendered judgment upon the conclusions of law and provided that within 180 days, “unless the court for good cause shown shall by its order extend the period for a reasonable time, the defendant The Bissel Chilled Plow Works, shall remove all walls and structures within an area” which is particularly described as in the finding of facts, excepting therefrom three piles described in the twenty-fourth finding, all of which work was to be done at the cost of appellant.
Appellant contends that the joint judgment rendered in favor of both appellees is erroneous because neither the pleadings, the evidence nor the finding of facts shows any joint right in appellees.
Section 263 Burns 1914, §262 R. S. 1881, provides that “All persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs, except as otherwise provided in this act.”
This is a proceeding in equity and in our view appellees were properly joined as plaintiffs without the aid of the statute. But under the statute those having an interest in the subject of the action and in obtaining the relief demanded must sue jointly, except in certain instances not involved here. Each of the appellees is injuriously affected by the same cause and they are jointly interested in removing such cause and preventing its recurrence. It is not essential to such joint right that the injury to each shall be identical or of the same degree. They have a common interest in the relief sought and the judgment rendered grants such re lief to both of the complaining parties. 1 Works’ Practice, ch. 5, p. 51; Tate v. Ohio, etc., R. Co. (1858), 10 Ind. 174, 71 Am. Dec. 309; Town of Sullivan v. Phillips (1887), 110 Ind. 320, 11 N. E. 300; Carmien v. Cornell (1897), 148 Ind. 83, 89, 47 N. E. 216; McIntosh v. Zaring (1897), 150 Ind. 301, 307, 49 N. E. 164. We there fore hold that the judgment is not erroneous because it was rendered jointly in favor of both appellees.
The evidence and the finding of facts show that the St. Joseph river is a navigable stream but is not'extensively used for navigation and under conditions that have prevailed for many years and still exist cannot be successfully navigated through any considerable portion of its length by large boats or vessels because of dams
Appellees’ claim is based on the proposition that appellant has created and proposes to permanently maintain obstructions in the river which wrongfully deprive them of the free use and full enjoyment of their property; that such obstruction is a public nuisance which causes special and different damage to appellees’ property from the injury suffered by the general public on account of such nuisance. Appellant contends that the St. Joseph river is not navigable in a sense that enables appellees to base any right thereon and also asserts that in any event the navigability of the stream is immaterial in this case, because the injury of which appellees complain is an injury to water power and not an interference with navigation.
Appellant contends that, if the finding of facts shows a technical interference with the right of navigation, appellees have not shown that they have the right to compel the removal from the river of the obstruction complained of.
Appellant also asserts that appellees have been guilty of such laches and acquiescence in what was done in filling up the river as to make it inequitable to compel it to remove the obstructions as directed by the court’s decree.
The findings also show that the dam in question is
The other facts connected with the history and use of the dam, the water power, the encroachment upon the stream by the riparian owners, the extent of navigation in the St. Joseph river and the structures erected along the west bank immediately south of the dam all appear in the digest of the finding of facts above set out and need not be repeated here. They show that the situation is complicated and presents many real difficulties if one attempts to reconcile all the facts and bring them into absolute harmony with any conclusion that may be reached. Viewed broadly it appears that the interested parties gradually encroached upon the river from the west under circumstances that make it reasonable to assume that each was cognizant of what the other was doing and tacitly acquiesced therein until 1905, when the Oliver Chilled Plow Works notified appellant to cease making deposits in the stream. At that time appellant was not using water power and appellee had discovered that the obstructions in the stream below or north of the power house held the water back and lessened the power produced by the water wheels and also backed the water up on the dam so as to lessen the power available thereby, for the reason that to the extent the water was prevented from flowing freely from the dam the head was decreased with a corresponding effect upon the fall of the water and the power available therefrom.
The facts, that appellant ceased to use water power in 1903, and sold to appellee Oliver Chilled Plow Works ground on which it erected part of its power house; that appellant must have known of the large expenditures of money by appellees in raising the dam, changing the race, building and equipping the power house and the purpose of such expenditures from 1903 to 1907,
Likewise on the facts of this case neither party is in a position to controvert the right of the other to the property acquired and held by it on the west bank of the river, down to a line where each may be held responsible for the situation created by such encroachments on the bed of the riv.er. In view of the fact that appellant sold to appellee a part of the ground on which its power house was erected, such line, on equitable principles, may be designated as the east line of the Oliver power house extendgd north along the west bank of the river to Colfax avenue as shown by the trial court’s finding of facts. This conclusion is likewise warranted by other facts proven by the evidence and found by the court which show that the encroachments on the bed of the river down' to such line have not materially interfered with or damaged any water power or other riparian right or interfered with the public right of navigation.
There is no showing that any money rentals were received by the company or that it used water power in any business or enterprise in which it was engaged. If such findings are essential the judgment is erroneous. However, the evidence and the findings do show that the South Bend Manufacturing Company erected and
It is no concern of appellant that the South Bend Manufacturing Company does not itself directly use
The findings show that the obstructions placed in the bed of the river west of a line corresponding with the east line of the Oliver power house extended, do not interfere with the navigation of the stream or hinder the free flow of water from the dam; that appellant is claiming title to the area from which the decree orders the obstructions removed; that such obstructions do extend out into the current of the stream and deflect its course and also damage the water power as above shown. The basis of the action is the nuisance created' by obstructing a navigable stream or public highway and causing special damage to the water power of appellees.
The encroachment on such stream must of necessity-stop at some place and the trial court has fixed a line beyond which such encroachments shall not extend at the point where the obstructions interfere with and deflect the main current of the stream, and back the water up and prevent its free flow from the dam and power house. As already shown, appellant and appellee Oliver Chilled Plow Works and their predecessors have alike acquired ground west of this line by filling in the bed of the stream and still hold and use the same. Its occupancy and use does not create a nuisance while the obstruction east of such line does create a nuisance.
In Sheffield Car Co. v. Constantine Hydraulic Co., supra, the Supreme Court of the state of Michigan considered a case wherein the owner of a dam across the St. Joseph river at Three Rivers brought suit to enjoin
It was contended that the owners of the upper dam had been guilty of such laches or acquiescence as to estop them from obtaining the relief demanded. Also, that the loss to the owners of the lower dam was so great in comparison with the injury to the upper dam as to make the decree inequitable. The court, among other things, said: "There is no claim that complainant gave any express consent or acquiescence, or that it stood by and allowed the raising of the dam to proceed upon any claim of the defendant that it expected to back the water above Drumhejler’s bridge. What the effect
In Sullivan v. Jones, etc., Steel Co. (1904), 208 Pa. 540, 57 Atl. 1065, 66 L. R. A. 712, the Supreme Court of Pennsylvania considered a case involving an injury to residence property from smoke and dust produced by a change in the manner of operating certain furnaces for the manufacture of pig iron, which involved the expenditure of large sums of money, and was of great importance to the business of the company operating the furnaces. The decision turned upon the proposition that more injury would result to the company by granting the injunction than would result to the property owners by denying it. The court, among other things, at page 554 (L. R. A. p. 718), said: “It is urged that as an injunction is a matter of grace, and not of right, and more injury will result in awarding than refusing it, it ought not to go out in this case. A chancellor does act as of grace, but that grace sometimes becomes a matter of right to the suitor in his court, and, when it is clear that the law cannot give protection and relief — to which the complainant in equity is admittedly entitled — the chancellor can no more withhold his grace than the law can deny protection and relief, if able to give them. This is too often overlooked when it is said that in equity a decree is of grace, and not of right, as a judgment at law. In Walters v. McElroy et al., supra (151 Pa. 549, 25 Atl. 125), the defendants gave as one of the reasons why the plaintiff’s bill should be dismissed, that his land was worth but little, while they were engaged in a great
The court then referred to certain instances where the principle of balancing equities had been invoked and the rule stated, and said: “ ‘None of them,' nor all of them, can be authority for the proposition that equity, a case for its cognizance being otherwise made out, will refuse to protect a man in the possession and enjoyment of his property because that right is less valuable to him than the power to destroy it may be to his neighbor or to the public’.”
In Woodruff v. North Bloomfield, etc., Co., supra, 788, it is said: “In the case of a public nuisance, it never becomes in itself lawful. It is not unlawful as to the whole public, and lawful as to its constituents, or a part of its constituents. It is absolutely and wholly unlawful. The act being unlawful, a private party sustaining special damages from the nuisance — from the unlawful act — gains a status which enables him to maintain a private action for such injury. * * * ‘The private party sues rather as a public prosecutor than on his own account; and unless he shows that he has sustained, and is still sustaining, individual damage, he cannot be heard. He seeks redress of a continuing trespass and wrong against himself, and acts in behalf-of all others who are or may be injured’.” See, also, Knox v. Chaloner (1856), 42 Me. 150; Kellogg v.
The trial court has exercised judicial discretion in this case in granting the-relief prayed and in fixing the
Note. — Reported in 111 N. E. 932. Navigable waters: (a) action for obstruction, 25 Am. Rep. 533, 29 Cyc 324; (b) private right of action for obstruction, 3 L. R. A. (N. S.) 1126, 38 L. R. A. (N. S.) 763; (c). right of private citizen to maintain action to abate nuisance caused by obstruction, Ann. Cas. 1913 E 51, 29 Cyc 324, 1208; (d) test of navigability, Ann. Cas. 1914 B 1067; Nuisance: acquiescence in or consent to erection of structure as precluding objection thereto, Ann. Cas. 1916 C 1235; effect of laches on remedy, 22 Cyc 777, 29 Cyc 1237.