81 Ind. App. 625 | Ind. Ct. App. | 1922
This action was brought by the appellee to recover damages alleged to have been sustained to his real estate, by reason of water being backed up and
The cause was tried upon a complaint in two paragraphs, third and fourth, and answers in general denial thereto, and also an affirmative paragraph of answer to said third paragraph of complaint, and resulted in a verdict for the appellee. With their verdict, the jury also returned answers to certain interrogatories submitted by the court. The appellant unsuccessfully moved for judgment in its favor upon such answers, and also for a new trial, and now prosecutes this appeal, and has presented for our consideration the denial of each of said motions.
It is so well settled as to need no citation of authority that, in considering the action of the trial court upon a motion for judgment non obstante, we can look only to the issues, the verdict, and the answers to interrogatories; and, under this rule, we cannot say, in this case, that the court erred in overruling said motion by appellant for 'judgment in its favor. Tested by the averments of the complaint, we cannot say that the answers, as given — they not covering all the material issues presented by said complaint — ■ are in irreconcilable conflict with the general verdict.
The action of the court in overruling the motion of appellant for a new trial presents entirely different questions. The specifications in this motion presented on this appeal, are, in substance: (1) That the verdict is not sustained by sufficient evidence, and is contrary to law; (2) error in refusing to give certain requested instructions; (3) error in giving certain in
The material averments of the third paragraph of complaint were, in substance, that the appellee was the owner of certain described land; that the natural watercourse, with well defined bed and banks, ran through his land draining it; that the waters in said watercourse flowed across appellee’s farm from the northeast to the southwest, leaving said lands on the west side thereof; that, for the purpose of draining his premises, appellee had constructed a system of underground tile drainage, which system had its outlet in said watercourse, and which outlet was good and sufficient for the draining of appellee’s land; that the appellant owned a large tract of land immediately adjoining appellee’s land on the west and extending to the southwest therefrom; that said natural watercourse, after leaving appellee’s land, flowed onto and across the lands of appellant ; that the appellant, for the purpose of gathering water and establishing a water station for its railroad, on November 24, 1909, and about 160 rods below the point where said natural watercourse leaves the land of appellee and enters upon those of appellant, carelessly and negligently erected and caused to be erected a large dam of earth and concrete construction across said natural watercourse; that the concrete portion of said dam consisted of a large concrete spillway in the channel of said natural watercourse; that said appellant carelessly and negligently constructed said spillway only thirteen feet in width; that said spillway is insufficient to permit the proper flow of water over and through said dam; that said dam and spillway are permanent in their character, and have the effect to and do obstruct the flow of water in said natural watercourse, and, by reason thereof, and as a result thereof, the said appellant has carelessly and negligently created
In said paragraph of complaint, it is further averred, that said appellant carelessly and negligently, without right and unlawfully, entered upon, took possession of, and appropriated appellee’s said land for reservoir purposes, as aforesaid, without in any manner acquiring the right to appropriate said land, and without any condemnation proceedings as provided by the statute in the State of Indiana, and without the consent of this appellee, and is continuing to appropriate, use and injure appellee’s said land, without his consent or without
The fourth paragraph of complaint is similar to the third, except that, in said fourth paragraph, there is the additional averment that, in the spring of 1913, said dam and spillway were washed out and destroyed in a flood caused by the unusual rains at that time; that during the summer of 1913, said appellant carelessly and negligently rebuilt and reconstructed said dam and spillway, and caused the same to be erected at least one foot higher than it had formerly been constructed; that the appellee was the owner of said real estate and was occupying the same at the time the appellant caused said dam and spillway to be rebuilt; that in the rebuilding of said dam and spillway, appellant purposely and wantonly disregarded the rights of appellee, and carelessly and negligently raised said dam and spillway to the height of one foot, and thereby caused the water in its said reservoir to rise one foot higher than it had risen before the reconstruction of said dam and spillway, and, by reason thereof, the appellant negligently caused the water in said reservoir to back onto and cover the appellee’s said land to a depth of one foot more than it had stood before said dam and spillway were reconstructed.
Upon the trial of this cause, no evidence was introduced concerning the insufficient width of the spillway in question. The case was tried upon the theory of an original wrongful taking and appropriation of appellee’s land, by the building of the dam and thus causing the water, by the raising of the level thereof, to
It is charged in the complaint that the dam in question was constructed in 1909. There is no conflict in the testimony upon this point, and no controversy about the reservoir' having been first filled about March, 1910. The testimony all shows that the dam and spillway erected in 1909 was erected as, and intended to be, a permanent structure for the impounding of water and creating the reservoir in question. Water seeks its level, and when at rest in -a pond or reservoir, the surface thereof, is level. It necessarily follows that when the dam and spillway were constructed in 1909, the height of the spillway, as then constructed, fixed the permanent water-level for said reservoir. This level having been then so permanently fixed, constituted a taking at that time of all lands below such water-level and liable to be submerged by the rise of the water in said reservoir, to said level so fixed. Guynn v. Wabash, etc., Light Co. (1914), 181 Ind. 486. At the time of the construction of said dam and spillway in 1909, as found by the jury in answer to an interrogatory, one Hornung and his wife were the owners of the land described in appellee’s complaint, and continued to' be such owners until January, 1911. This being true, the Hornungs had a right of action against appellant for the damage they had sustained by the taking, and consequent injury to their farm, upon the completion of said dam and spillway, in 1909. The appellant, as a railroad corporation, had a right to take and appropriate the lands in question for its uses, under the power of eminent domain. It built such dam and spillway on its own land for the purpose of impounding the water, so that it might use the same in its business, as such company. The dam and spillway having been built under authority of law, was not abatable
The fourth paragraph of complaint alleges that, in the spring of 1913, said dam and spillway were washed out, and that thereafter appellant reconstructed them, “and caused the same to be erected one foot higher than it had formerly been constructed”, and that the appellee was then the owner of and in possession of said lands, and that, by reason of such construction, the waters were caused to rise higher than before, etc. Proof of these facts would entitle the appellee to damages, as for an additional
The appellant, at the proper time, tendered and requested the court to give to the jury certain instructions, and to the refusal of the court to give said instructions, it duly excepted. We do not deem it necessary to discuss said tendered instructions in detail. Those numbered severally 1, 4, 6, 7, 8, 9, 11, 12, 15, and 17 were,. as applied to the facts of this case, as shown by the evidence, in harmony with the views herein expressed, and should have been given. There was no error in refusing to give other tendered instructions, which were refused, said instructions not being accurate statements of the law, as applied to the facts of this case.
Complaint is also made of the second instruction given by the court of its own motion, said instruction being as follows: “The preponderance of the evidence does not depend upon the number of witnesses and does not mean the greater number of witnesses. It does depend upon the weight of the evidence and means the greater weight of the evidence.” This instruction has been approved as being correct by our Supreme Court. Davis, Exr., v. Babb (1920), 190 Ind. 173.
For the errors above indicated, this cause is reversed, with directions to the trial court to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.