176 Ind. 461 | Ind. | 1911
Louisa J. Chapman, appellant, commenced this action against George Lambert, appellee, for damages for collecting and discharging surface-water and sewage into her private sewer.
There was a special finding of facts made by the court and conclusions of law stated thereon. A decree was entered for defendant. Plaintiff appeals.
The court found the following facts: On December 29, 1899, appellant was the owner of a tract of land situated in the city of Elkhart, commonly known as "Chapman’s marsh,” Prior to that date she had constructed on said
“This agreement, made and executed December 29, 1899, by and between Melville S. Chapman and Louisa J. Chapman, parties of the first part, and George Lambert, party of the second part, witnesseth, that, whereas, said parties of the first part have this day entered into an agreement in writing with the party of the second part for the purchase and sale of certain real estate in the city of Elkhart by the parties of the first part to the party of the second part, said real estate being a tract of about three acres lying on the east side of a tract of land known as ‘Chapman’s marsh,’ and about five and three-fourths acres lying on the west side of said ‘Chapman’s marsh,’ said tracts of land being more specifically described in said articles of agreement, to which reference is made for a more complete description thereof; and whereas the parties of the first part have heretofore constructed a sewer, beginning in the city of Elkhart, Elkhart county, Indiana, at a point where the center line of South Sixth street in said city is intersected by the center line of Mulberry street, and extending eastwardly along a line in prolongation of the center line of Mulberry street, and on the center line of said Mulberry street about two thousand feet, and crossing said two tracts of land so sold to said party of the second part. Now, therefore, said parties of the first*464 part, in consideration of the payment of the purchase price thereof by said party of the second part, hereby agrees to and with him that he may at any and all times hereafter make connections with said sewer for all the property so purchased by him from the parties of the first part, and for any ¿nd all other property owned by second party located within the district drained by said sewer, and any laterals hereafter connected therewith, and the parties of the first part shall be entitled to no additional compensation for any connections made by said second party with said sewer or its laterals. It is further agreed by and between the parties hereto that any and all repairs hereafter made upon said sewer shall be assessed pro rata per front foot against the property bordering on said sewer, and each of the parties hereto agrees -with the other that in any and all deeds which he or they shall make for land fronting on said sewer he or they will bind the land so conveyed to pay its proportionate cost of all future repairs on said sewer, and it is agreed that neither party hereto shall ever obstruct said sewer in any manner, but shall keep it open for the use of all parties interested therein. It is further agreed by and between the parties hereto that if other parties owning real estate in the territory drained by said sewer shall desire to connect with said sewer, there shall be assessed against and collected from such other parties such sum as the parties hereto shall deem sufficient and proper for such privilege, and the proceeds thereof shall be equally divided between the parties hereto.
It is agreed that the deed to be made by the parties of the first part to the party of the second part for the real estate before mentioned shall contain all the provisions of this agreement.
In witness whereof the parties have hereunto set their hands and seals this December 29, 1899.
Melville S. Chapman
Louisa J. Chapman
George Lambert.”
Melville S. Chapman, who signed the foregoing contract, was a son of appellant, and he owned no interest in the real estate at that time.
The description of the three-acre tract, in the first-mentioned contract, was, by mutual mistake, erroneous, but
On December 29, 1900, plaintiff executed to defendant her deed for a part of the five-and-seventy-three-one-hundredths-acre tract, in which deed she reserved the right to use and make connections with the sewer, to extend the sewer and construct laterals thereto, and to grant to others the right to connect with the sewer and laterals. On January 10, 1901, plaintiff executed to defendant her deed for the remainder of the five-and-seventy-three-one-hundredthsaere tract, and on the same day executed her deed for the three-acre tract. The latter contains no reference to the sewer. Defendant procured a scrivener to draw the deed for the three-acre tract, but, by mistake, gave him no instructions to embody therein the provisions of the supplemental contract concerning sewer rights and privileges of the parties. Plaintiff executed the deed without knowing the provisions thereof, but believed that it contained the provisions agreed upon in the supplemental contract, and it was not intended by plaintiff at the time to make a deed except as provided for in the contract.
In the year 1904, appellee became for the first time the owner of three residence properties and a vacant lot situated immediately east of the three-acre tract. These properties were not a part of “Chapman’s marsh,” but were within the district drained by the sewer constructed as before stated. In the same year appellee extended the sewer from its original terminus near the center of the three-acre tract, across the remainder of the latter tract to his three residence properties and a vacant lot, and through and by means of this extended sewer he collected the surface-water and
For the alleged wrongful act of collecting and discharging the sewage and surface-water from these properties acquired by appellee in 1904, appellant in her complaint demands damages in the sum of $5,000.
Appellee filed an answer, alleging, in substance, the foregoing facts, and claiming that under the provisions of the supplemental contract his acts were lawful. He also filed a cross-complaint against appellant, demanding a reformation of the deed for the three-acre tract, so that it should contain the provisions with reference to the sewer embodied in the supplemental contract. Before filing his cross-complaint, appellee tendered to appellant for. execution a deed containing the sewer provisions of the supplemental contract. In the deed tendered the description of the three-acre tract was the same as in the contract of December 29, 1899.
Appellant made a motion to strike out the cross-complaint, because it was not germane to her action, which motion was overruled. She also filed a plea in abatement to the cross-complaint, to which the court sustained a demurrer. In the plea in abatement it was alleged that there was another action pending between the parties based on the same subject-matter.
The first conclusion of law stated by the court was that the deed of January 10, 1901, should be reformed, by having inserted therein all the provisions of the supplemental contract of December 29, 1899. The second conclusion was, in substance, that the action of appellee, complained of, was in accordance with the supplemental contract and within his rights under the deed of January 10, 1901, when reformed.
Appellant earnestly maintains that the easement granted to appellee applied only to the property purchased by him from appellant and other property owned by him at the time of the execution of the contract on December 29, 1899.
There is no error in the record. Judgment affirmed.