21 Ind. App. 621 | Ind. Ct. App. | 1899
The complaint . alleges that the plaintiff is the owner of the land therein described; that his land was injured by an overflow of the water of a ditch running through it; that the ditch was
A demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action was overruled, and exceptions taken. The cause was put at issue by general denial, submitted for trial to a jury, and a verdict returned in favor of appellee for $458, for which amount the court, after overruling appellant’s motions for a new trial and in
The first and second specifications of the assignment of errors question the sufficiency of the complaint. Appellant insists that the complaint does not show the obstruction of a natural water course. It will be noticed upon reading that it does not aver that the ditch was a natural water course, nor set out facts showing it to be such; while from the expression “Holloway ditch” an artificial ditch would be inferred, construing, under the rule, the language used most strongly against the pleader. Cleveland, etc., R. Co. v. Dugan, 18 Ind. App. 435, and authorities cited.
If the complaint is good, it must be because facts are stated showing a duty on the part of appellant to construct a larger sewer than the one it actually constructed. A complaint based upon negligence must state facts showing a specific duty owing to the party complaining, and a wrongful breach of the duty by the defendant. Faris v. Hoberg, 134 Ind. 269; Cleveland, etc., R. Co. v. Stephenson, 139 Ind. 641; Thiele v. McManus, 3 Ind. App. 132; Morrow v. Sweeney, 10 Ind. App. 626. The acts complained of were done by appellant on its own land, and in the use of its own property. It will not be presumed that they were wrongfully done. The allegation that appellee “was entitled to the free and unobstructed flow of the water in the channel” is the statement of a conclusion. In Field v. Chicago, etc., R. Co., 16 Mo. 614, it was held that, where an action was grounded on a breach of duty, “the facts out of which the duty arose must be pleaded.” From the facts pleaded, was the appellee entitled to have the water flow on through the lands-of the appellant? If it had this right, it was derived from the existence of an artificial ditch, construing
An artificial water way may not be constructed or maintained, except by authority of law, or under a contract, in any case where it imposes a burden upon
There are no facts averred showing a license from the appellant to construct a ditch to conduct water to or through its property. Such license will not be inferred. Bolts v. Smith, 3 Ind. App. 43. The law presumes that landowners have received full compensation for injuries resulting from the construction and operation of a railroad. The construction and operation of railroads include necessary changes in the roadbed and culverts. Clark, Adm., v. Hannibal, etc., R. Co., 36 Mo. 202; Hodge v. Lehigh Valley R. Co., 39 Fed. 449; Aldrich v. Cheshire R. Co., 21 N. H. 359, 53 Am. Dec. 212; Johnson v. Atlantic, etc., R. Co., 35 N. H. 569, 69 Am. Dec. 560; Slatten v. Des
Where a right to bhild and maintain a railroad is acquired, the principal right includes the subsidiary right to make needed changes, since the presumption is that the company acquires all the estate, interest, and right necessary for the proper construction and maintenance of a railroad. Hargis v. Kansas City, etc., R. Co., 100 Mo. 210, 13 S. W. 680; East Tennessee, etc., R. Co. v. Telford, 89 Tenn. 293, 14 S. W. 776, 10 L. R. A. 855; Prather v. Western Union, etc., Co., 89 Ind. 501; Indianapolis, etc., R. Co. v. Rayl, 69 Ind. 424; Campbell v. Indianapolis, etc., R. Co., 110 Ind. 490; Duck River, etc., R. Co. v. Cochrane, 3 Lea 478; Day v. Atlantic, etc., R. Co., 41 Ohio St. 392; Jones v. Erie, etc., R. Co., 144 Pa. St. 629, 23 Atl. 251; Kansas, etc., R. Co. v. Allen, 22 Kan. 285. Cases cited in 3 Elliott on Railroads, section 938, p. 1304.
The learned counsel for appellee claim that the complaint is sufficient because it shows a prescriptive right in the averment that the water had flowed through appellant’s land for more than twenty years. The following are the allegations of the complaint upon this point: “The defendant making a sewer through and under the embankment threw up for their grade on which their tracks were laid, immediately in the line of said ditch, and for the purpose of allowing the waters therein to flow under said railroad, as they had done for twenty years previous thereto, negligently placed in line of said ditch an insufficient sewer.” Appellant insists that the state
We do not deem it necessary to pass upon the other questions raised by the assignment of errors, as they may not arise upon a second trial. Judgment reversed, with instruction to the trial court to sustain appellant’s demurrer to the complaint, and for other proceedings not inconsistent herewith.