50 Ind. App. 409 | Ind. Ct. App. | 1912
— On November 22, 1909, appellant commenced this action against appellee, charging the latter with the conversion of certain drain tile. '
A demurrer for want of facts was sustained to the complaint, and appellant refusing to plead further, judgment was rendered against her, and in favor of appellee. The sufficiency of the complaint to withstand the demurrer is the question presented.
From the complaint it appears, among other things, that appellant was for many years the owner and in possession of certain described real estate in White county, Indiana, and on which, for several years, there existed a tile ditch, regularly established and constructed by the board of commissioners of said county under the drainage law then in force, for the purpose of draining said land and other lands assessed to pay for its construction. In the year 1909, said board of commissioners, pursuant to the drainage law in force April 10, 1907, established and ordered constructed over appellant’s said land, and along the line of the aforesaid tile ditch, a new ditch, for the construction of which the contract was awarded to appellee; that appellee, in the performance of said contract, entered on the land of appellant, excavated and removed the soil and tile along the line of the old ditch to the land of appellant bordering on th.e new ditch, where the tile remained for several days, as á part of such excavation; that while the tile so remained, appellant informed appellee that she was the owner of them, that they were in her possession, and forbid him removing them from her land, but appellee, disregarding appellant’s warning, without any right or title thereto, removed said tile from her said land, and out of her possession, and wrongfully converted them to his own use; that the old tile were not taken into account by the drainage commissioners, nor mentioned in the plans and specifications for the new ditch, neither wer® they considered in the contract with appellee, nor used in the new construction; that appellant was the
The case of Smittle v. Haag (1908), 140 Iowa 492, 118 N. W. 869, on account of a code provision of that state (Acts of Iowa 1904 p. 68, §26), and its particular facts, is not an authority in this ease.
Judgment reversed, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 98 N. E. 448. See, also, under (1) 38 Cyc. 2068; (2) 38 Cyc. 2071; (3) 38 Cyc. 2048, 2068; (4) 31 Cyc. 333; (5) 38 Cyc. 2052; (6) 38 Cyc. 2062; (7) 38 Cyc. 2044; (8) 38 Cyc. 2089.