41 Ind. App. 696 | Ind. Ct. App. | 1908
Appellant, Isabella Cassidy, as a landowner on a natural watercourse, brought this suit against the appellees for a mandatory injunction, praying for the removal of obstructions placed by the appellees in a natural watercourse, to wit, Sulphur fork of the Middle fork of the Anderson river, which obstructions, it is alleged, impeded the natural flow of the water and diverted it upon and over the lands of appellant. Each of the appellees answered by general denial. In addition, appellees Johnson and Gleason separately filed second paragraphs. Said second paragraphs are substantially the same. We give the substance of appellee Gleason’s. It alleges that at the time of the grievances complained of he was the duly elected, qualified and acting trustee of Leopold township, Perry county, Indiana, and as such was required to keep general supervision over the highways of said township; that the dams complained of by plaintiff were built in and across a public highway in Leopold township; that the same had been a highway, by uninterrupted use by the public, for a period of more than twenty years, and that as trustee he directed the road supervisor where said road was situated to erect dams across said highway, so as to make said highway again useful for travel, by causing the same to fill up to its proper level and remove the water therefrom, all of which plaintiff had caused by her wrongful act hereinafter mentioned; that, prior to the time said defendant directed the construction of said dams and fills, the plaintiff, who was a riparian landowner along the public stream in question, and which said stream crosses said road mentioned, and runs parallel to said
Plaintiff’s separate demurrer to said paragraph was overruled, and she replied in two paragraphs — first a general denial. Said second paragraph of reply alleges that, previous to the construction of the dam across said stream by the plaintiff, complained of by said defendants in their second paragraph of answer, the defendant David C. Morris erected a dam to divert the flow of water from said branch from its natural course, and turned the water upon the land of said plaintiff, which dam so erected did divert the water from its natural course, and turned the same in and upon the lands of said plaintiff; that, in order tó stop the water from-passing over her said lands, and foroe the same into its original channel, the plaintiff did erect a dam on her premises to keep the water in its natural watercourse, and cause the same to run within the banks of said stream; that plaintiff did not at any time divert the water out of its natural and original course. Defendants’ demurrer to said second paragraph of reply was sustained, and upon the trial the-court found for the defendants and rendered judgment in their favor. Plaintiff’s motion for a new trial, for the reasons (1) that the decision of the court is not sustained by sufficient evidence, (2) that the decision of the court is contrary to law, and (3) the plaintiff has since the trial discovered evidence material to her action as shown by affidavit hereto attached and made a part hereof, was overruled.
Judgment affirmed.