22 Ind. 463 | Ind. | 1864
In 1846, the State of Indiana, by Stearns ' Fisher, her agent, made a lease of water power on the Wabash and Erie Canal, at Delphi, to one Robertson, to this extent, "viz: “ The use, &c., of so much of the surplus wale/, not required for the purposes of navigation, &e., as will he sufficient to propel a paper mill, not requiring more than four standard powers/"' &c.
The canal, water power, water rights, &c., subsequently passed to the Board of Trustees, &c., and the lease to Robertson passed by assignment to the plaintiffs.
The assignment was not approved by the chief engineer till some time after i t was made, but the approval, when made, related back to the time of the assignment. Ashley v. Eberts, ante, 55. After the foregoing lease was executed, others were successively made to different parties.
When the supply of water began to decline, in the dry season, the mills on the canal had to stand idle more or less of the time for want of water; and the question in this case
The Court below held that the mills were to stop in the inverse order of the leases. After considerable reflection, and some doubt, we have come to the conclusion that the Court was right. As matter of law, we think such was the operation of the successive leases; and we do not discover anything in the statutes controlling that operation, as governed by general legal principles. This being so, the simple facts that the Trustees made subsequent leases at the request of prior lessees, and that the rents would facilitate the collection of a debt by such prior lessees, could not change the legal effect of the leases, nor the rights of successive lessees.
The defendants below, the Trustees, set up a claim against' the plaintiffs for the use of extra water, for power used.in excess of the lease. As a fact tending to rebut the validity of the claim, the plaintiffs proved, by parol, that they had had transactions with the defendants, the Trustees, had passed receipts, and that the defendants, the Trustees, had not, before this suit, set up any claim for the use of extra water. The defendants then asked the witness, who stated the foregoing facts, if the transactions mentioned were not suits of which records existed, &c., and the witness answered that they were, whereupon the defendants moved that the entire statements of the witness be rejected as evidence, which motion the Court overruled.
It is a general rule that the best existing evidence of a fact must be produced to prove it; and where the matter to be
The judgment below is affirmed, with 1 per cent, damages, and costs.