80 Ind. App. 298 | Ind. Ct. App. | 1918
This is an action by appellee against appellant to recover damages caused by an alleged obstruction of a natural watercourse. The complaint is in a single paragraph and alleges in substance, among other things, that appellee is the owner of certain land crossed by a natural watercourse, which flows from the south toward the north; that appellant is the owner of a right of way, lying immediately north of its said land, which crosses said watercourse at right angles; that many years prior to the alleged grievances, appellant constructed a railroad grade fifteen feet high for its main track, over its said right of way; that it constructed an archway of masonry through said grade where it crossed said watercourse, eight feet wide and ten feet high, which was of .sufficient size to carry the water thereof if left unobstructed; that it so maintained its said grade and archway until about six years ago, when it widened its roadbed by constructing an additional grade to the same height on the south side thereof for a switch track; that in so doing it willfully,
The second paragraph of answer was a general denial. Appellee filed a demurrer to appellant’s first paragraph of answer for want of facts, which was sustained. The cause was submitted to a jury for trial, and a verdict was returned in favor of appellee for $5,500, together with answers to interrogatories submitted by the court. Appellant filed a motion for judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, which was overruled. Judgment was thereupon rendered in favor of appellee. Appellant filed a motion for a new trial, which was overruled. It now prosecutes this appeal, and in its assignment of errors alleges that the trial court erred as follows: (1) In overruling its motion to require appellee to make its complaint more specific; (2) in overruling its motion to strike out parts of the complaint; (3) in overruling its demurrer to the complaint; (4) in sustaining appellee’s demurrer to its first paragraph of answer; (5) in overruling its motion for judgment on the answers to the interrogatories notwithstanding the general verdict; (6) in overruling its motion for a new trial. Of the errors so assigned appellant has waived the first, second and third by failing to state in its brief any propositions or points with reference thereto, and expressly states that it relies on the fourth, fifth and sixth for reversal.
With reference to the fourth assigned error it suffices to say, that if the facts alleged in appellant’s first paragraph of answer constituted a defense, no reversible error was committed in sustaining a demurrer thereto, since all of such facts were provable under the general denial on file. Jeffersonville, etc., Co. v. Riter (1897), 146 Ind. 521, 45 N. E. 697; Harness v. Steele (1902), 159 Ind. 286, 64 N. E.
The fifth assigned error relates to the action of the court in overruling its motion for judgment on the answers to the interrogatories notwithstanding the general verdict. In considering this question it should be borne in mind that the general verdict must be taken as a finding that the material averments of the complaint are true. It is therefore a finding that the stream in question is a natural watercourse, and that it was unlawfully obstructed by appellant to appellee’s damage. Under these facts appellee was entitled to a judgment in its favor, unless the answers to the interrogatories are in irreconcilable conflict therewith, as appellant contends. The specific facts found by such answers, on which appellant bases its right to a judgment are substantially as follows: About the year 1900, a public county tile ditch was constructed down the valley involved in this action for a distance of about 6,000 feet, which passed under appellant’s railroad at the place in controversy; that prior to that time there was a stream of water flowing down said valley and over the right of way of appellant’s railroad, which was a living stream, supplied by water from springs; that said public tile ditch was of sufficient capacity to carry the water flowing down said valley, except at times.of heavy rains or floods; that the said springs along the course of said public tile ditch flowed into said tile drain and down the course thereof inside the
That there was no order or provision made for an open channel or waterway above or over the tile in said public ditch, and appellee constructed a paling fence across the line thereof, with a base twelve inches wide; that said public tile ditch has continued as such from the time the same was so established and constructed by the Randolph Circuit Court down to the present time.
It appears to be appellant’s contention that the establishment and construction of the public tile drain in the bed of the stream, and the obliteration of the greater portion of its bed and banks, as found by the answers to the interrogatories, destroyed its character as a natural watercourse, or made the tilé drain the sole channel thereof, so that it was relieved of the duty, which had theretofore existed, of providing a surface passage for the water of such stream through its railroad embankment. We cannot concur in this contention. It has been held by this court that the construction of an artificial drain in a natural watercourse does not change its nature as such. Schwartz v. Nie (1902), 29 Ind. App. 329, 64 N. E.
If the natural watercourse still remained after the establishment and construction of the. public tile drain as we have held, any report of the commissioners or decree of the court, with reference to the capacity or sufficiency of such drain, made in the proceedings therefor, or the absence therein of any provision for a surface channel for the flow of any portion of the water thereof, could not have the effect of relieving appellant of either its common-law or statutory duty with reference to such watercourse. Nor did the obliteration of the greater portion of the bed and banks of such stream, or the fact that after the construction of said tile drain, no living stream of water remained on the surface of the ground, except at times of heavy rains or floods, as found by the answers to the interrogatories, have such effect.
It is urged, in effect, that since the answers to the interrogatories find that the capacity of the public tile drain was sufficient to carry the water flowing down the valley in question, except at times of heavy rains or floods, that the water overflowing the same at such times must be considered mere surface water, against which appellant had a right to protect itself, and hence incurred no liability by obstructing its flow. The case of Hart v. Sigman (1903), 32 Ind. App. 227, 69 N. E. 262, is cited as an authority in support of this proposition, but we cannot accept it as such. In that case the statement is made, and evidently relied on by appellant, that in so far as certain waters were
The law recognizes that a natural watercourse may have, not only an ordinary channel in which its waters usually flow, but also a high-water channel in which its flood waters flow, during certain seasons of the year, or at times of heavy rainfall. Such high-water channel constitutes a part of the watercourse, and cannot be obstructed without liability to one injured thereby. Dunn v. Chicago, etc., R. Co. (1917), 63 Ind. App. 553, 114 N. E. 888. It is also well settled that the water of a natural watercourse does not cease to be a part thereof, and become mere surface water, because it may overflow its ordinary channel, spread out over adjacent low ground, and flow for a distance without a defined channel, before returning to and flowing in its usual confines. Mitchell v. Bain (1895), 142 Ind. 604, 42 N. E. 230; Vandalia R. Co. v. Yeager, supra; Evansville, etc., R. Co. v. Scott (1916),
After the public tile drain in question was constructed, and the surface channel of the watercourse was in a large measure obliterated, the artificial drain, which took the place of- the bed and banks of the stream, became the ordinary channel thereof, and the water which overflowed the same -was its flood water. Whether such flood water became mere surface water, or continued to be a part of such stream, must be determined by the same facts as would have been decisive, had such artificial drain not been constructed and its original channel largely obliterated. It should be borne in mind that in determining the correctness of a ruling on a motion for judgment on the answers to interrogatories the court must look alone to such answers, the pleadings and the general verdict; that every presumption is indulged in favor of the general verdict, and the answers to the interrogatories will be permitted to prevail over it only in cases where the conflict between the two is such that no evidence possible under the issues could reconcile it. Williams v. Lowe (1916), 62 Ind. App. 357, 113 N. E. 471.
Under the issues in this case the evidence may have shown, that the water from the stream in question had overflowed the public tile drain at intervals since its construction; that at such times the flood water there
It is further urged against appellee’s right to recover in this action, that the answers to the interrogatories show that its alleged injuries were the result of an unprecedented flood, or what is commonly known as an.act of God. It has been held by this court in a comparatively recent case, that before an act of God can be made available as a defense, there must be an entire exclusion of human agency from the cause that produced the injury, as an occurrence that is produced partially by the intervention of human agency is not an act of God within the meaning of the law. Evansville, etc., R. Co. v. Scott, supra. In this case the complaint alleges that appellant carelessly, negligently and unlawfully, completely and entirely, stopped up and obstructed the watercourse in question, so that the water thereof could not and did not flow through and under its grade and road bed, down its channel to its outlet. The general verdict is a finding in appellee’s favor on this material averment. True, the answers to the interrogatories show that at the time appellant constructed the new grade on the south side of the main track, it placed under and through such new grade, at or near the level of the bottom of the
Appellant’s sixth assigned error relates to the action of the court in overruling its motion for a new trial. One of the reasons urged in support of this motion is, that the damages assessed by the jury are excessive. In presenting this reason appellant contends that the jury was not authorized to include in its verdict any greater sum for certain specific items of damage than the complaint alleges was sustained on that account. This contention is not tenable. It has been held that the mere fact that a verdict is for an amount in excess of that asked in the complaint, cannot be assigned as a cause for a new trial in. any form, in case the facts stated and the evidence given, entitled the party to recover the amount found. In such a case the demand in the pleading will be deemed to have been amended to meet the amount of damages proved and found. McKinney v. State, ex rel. (1889), 117 Ind. 26, 19 N. E. 613; Noyes Carriage Co. v. Robbins (1903), 31 Ind. App. 300, 67 N. E. 959; Helms v. Appleton (1908), 43 Ind. App. 482, 85 N. E. 733, 86 N. E. 1023. Appellant has also submitted a calculation by which it
Among the reasons assigned by appellant in support of its motion for a new trial are, that the verdict is not sustained by sufficient evidence, and is contrary to law. Substantially all the questions presented under these alleged errors have been considered in passing upon the action of the court in overruling appellant’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict, and hence they need not be considered here. It suffices to say that when appellant constructed its additional embankment across the valley in question, and over the natural watercourse which drained the same, it was its duty to use due care not to obstruct the flow of the water thereof. In exercising such care it was its duty to consider the size of the stream, its history, the area and topography of the country drained thereby, the probable rainfall thereon, the existence of the public tile drain, its capacity and sufficiency to carry the water of the stream, not only at ordinary times, but on occasions of such freshets and floods as might reasonably be anticipated, and then construct its embankment in such manner as not to obstruct the watercourse.
Appellant also predicates .error on the action of the court in admitting certain evidence over its objections. Complaint is made that the witness, Jacob E. Hinshaw, was permitted to testify as to the manner in which the public drain through the ravine in controversy was constructed, thereby contradicting his report thereof as a commissioner, and the record of the proceedings of the Randolph Circuit Court. It is urged that this was error as the records are the best evidence, and that the admission of the evidence of the witness was, in effect, a collateral attack on such proceedings. In determining this contention it should be borne in mind, that this is an action for the obstruction of a natural watercourse, and not for a failure of the drain to carry the water thereof. Hence the establishment and construction of the drain was only incidently involved. Appellee had a right to show the manner in which it was constructed, as bearing on the existence and condition of the watercourse at the time of the alleged injuries. The fact that the witness had acted as a commissioner in the construction of said drain, and had made a report of the manner of its construction, would not preclude him from testifying on that subject, and if his testimony contradicted his report it might affect its weight, but not its competency. Nor would such evidence be, in any sense, a collateral attack upon the records of the Randolph Circuit Court, made in the proceedings under which said drain was estab
Appellant contends that the court erred in admitting the evidence of the witness, Alonzo E. Ludy, to the effect that the artificial drain did not carry all the water of the watershed during all times of the year. It claims that the Randolph Circuit Court, in the proceedings to establish the drain had decreed it to be sufficient to carry all water that flows, or should flow in the ravine in controversy, and hence it was error to admit evidence to the contrary. Whether the drain had carried all of such water, prior to the injury in question, was a proper subject of inquiry. The fact involved was not, and could not have been determined in any decree made in the proceedings to establish the same, and hence was not the best evidence of the fact in question, as appellant contends. There was no error in admitting the evidence.
Appellant alleges in its motion for a new trial, that the court committed a number of errors in the admission of evidence by the witness, Michael L. Summers, but has waived all except one, by failing to state what specific objections were made to the admission of such evidence on the trial, or that any exception was taken to the ruling of the court thereon. American Fidelity Co. v. Indianapolis, etc., Fuel Co. (1912), 178 Ind. 133, 98 N. E. 709. The record shows that after the introduction of evidence, which tended to show that one Eastman was the agent of appellant at Winchester, Indiana, where appellee’s plant is located, and that the witness had talked with him with reference to the condition at its plant caused by appellant’s embankment, he was asked the following' question: “Tell the jury what was said in those conversations had with Mr. Eastman concerning the question of handling the water situation east of your plant where
Appellant also alleges in its motion for a new trial, that the court committed a number of errors in the admission of evidence by the witness, George E. Leggett. However, in accordance with the rules, our consideration will be limited to those on which propositions or points have been stated by appellant in its brief. It is contended that it was error to permit the witness to testify as to the cost of repairs to appellee’s plant, caused by the flood in question while he was traveling in Europe. The record discloses that certain temporary repairs were made while the witness was in Europe, and that after his return certain permanent repairs were made. The witness did not testify to the cost of the temporary repairs made in his absence, but was asked what it was reasonably worth to make the permanent repairs, and answered “$264.45.”
It is also urged that the court erred in permitting the last named witness to testify as to the net profits of appellee from the operation of its plant from February 22 to March 22, 1913, for the reason that he had testified that he was absent, traveling in Europe, during the last twenty-two days of such period. It appears that the witness based his evidence of the net profits of appellee during such period on facts ascertained from an examination of the books of appellee. It is well settled that where books, records, and papers, which might properly be used in evidence, are numerous or voluminous, it is competent for any qualified person who has examined them, to testify as to the result of such examination with regard to the subject under investigation. Shover, Admr., v. Myrick (1892), 4 Ind. App. 7, 30 N. E. 207; Rogers v. State, ex rel. (1884), 99 Ind. 218; Hollingsworth v. State (1887), 111 Ind. 289, 12 N. E. 490; Culver, Admx., v. Marks (1890), 122 Ind. 554, 23 N. E. 1086, 7 L. R. A. 489, 17 Am. St. 377; The Equitable, etc., Ins. Co. v. Stout (1893), 135 Ind. 444, 33 N. E. 623; Chicago, etc., Co.
Appellant bases its motion for a new trial in part on the action of the court in giving certain instructions, but has waived all of such alleged errors, except those relating to No. 8, given by the court on its own motion, and to No. 10, given by the court at the request of appellee, by failing to direct any propositions or points thereto in compliance with the rules. The former instruction relates to the liability of appellant for the alleged damage to appellee’s plant, in case the jury finds that such damage was caused partly by the act of God, and partly by reason of the negligence of appellant in obstructing the natural watercourse by its embankment. This instruction was evidently based on the well-established rule on that subject as laid down in the case of Evansville, etc., R. Co. v. Scott, supra, cited in considering appellant’s fifth assigned error. The instruction comes clearly within such rule and the court did not err in giving the same.
Instruction No. 10, given at the request of appellee, treats of appellant’s liability in case the jury finds that there was an extraordinary heavy rainfall, which caused an unprecedented amount of water to flow down the natural watercourse, at the time appellee received his alleged injuries. .Appellant in his propositions or points sums up its objection to this instruction as follows: “In effect the charge says, that it is negligent on the part of appellant to fail to construct through its grade a way for the passage of an unprecedented amount of water.” While the instruction is not free from criticism, we do not believe the jury could have placed the construction on it for which appellant contends, or have been misled thereby, in the light of other instructions given on the same subject. The jury was
The motion for a new trial contains other reasons in support thereof which are not considered, as appellant has waived the same by failing to make any specific reference thereto in his propositions or points, as required by the rules governing the preparation of briefs. Buffkin v. State (1914), 182 Ind. 204, 106 N. E. 362; Merchants Nat. Bank v. Nees (1915), 62 Ind. App. 290, 110 N. E. 73, 112 N. E. 904. We find no reversible error in the record. Judgment affirmed.