163 Ind. 687 | Ind. | 1904
On July 22, 1903, the appellee, the French Lick Springs Hotel Company, together with four other persons, filed its complaint in the Orange Circuit Court against the appellants, George S. Gagnon, the Baden-Lick Sulphur Springs Company, John L. Howard and John C. Howard, asking that the defendants he temporarily restrained and enjoined from pumping water on the premises of the defendants, and from doing other acts alleged to he wrongful and injurious to the property of the plaintiffs, and that, on the final hearing, the injunction he made per
An appeal to the Supreme Court may be taken from an interlocutory order of any circuit court or judge thereof
The decisions complained of and assigned for error are the overruling of the motion to dissolve the temporary injunction of October 26, 1903, the overruling of the motion to modify thp injunction of October 26, 1903, the overruL ing of the motion to dissolve the injunction of October 26, 1903, and the granting of the temporary injunction of August 3, 1903.
It is objected by counsel for appellee that the appellants can not bring before this court in a single appeal more than a single interlocutory order granting an injunction or. overruling a motion to dissolve an injunction. As all the orders appealed from were made in the same cause, and the appeal as to.each decision complained of was taken within the time prescribed by the statute, we think that all such orders are properly included in a single appeal.
Upon an appeal from an interlocutory order granting or refusing to modify an injunction, it ' is not necessary that such a case should be made out as would entitle the plaintiff to relief at the final hearing. It is sufficient if the court finds upon the pleadings and evidence such a state of facts as ipakes the transaction a proper subject for investigation in a court of equity. Spicer v. Hoop (1875), 51 Ind. 365; People’s Gas Co. v. Tyner (1891), 131 Ind. 277, 283, 16 L. R. A. 443, 31 Am. St. 433; Home, etc., Power Co. v. Globe Tissue Paper Co. (1897), 146 Ind. 673, 679. Is this such a case? The French Lick Springs Hotel Company owns some 550 acres of land situated in a valley two and one-half
On and before June 25, 1901, this hotel property, consisting of certain frame hotel buildings, the lands aforesaid, and the natural springs thereon, was owned by said Erench Lick Springs Company, of which corporation John L. Howard and John C. Howard, parties to this action, were stockholders, the said John C. Howard being an officer thereof. On the date last named said Erench Lick Springs Company sold said property to the appellee corporation, the Erench Lick Springs Hotel Company, receiving therefor the sum of $385,000, which was the fair cash value thereof, but that without said springs the fair cash value of said property would not have exceeded $20,000; the said appel
Within a year prior to the bringing of the action, the Baden-Lick Sulphur Springs Company and the Howards have each sunk a well on their respective tract's of land in said valley for the purpose of tapping the body of water underlying said valley, and stick wells were sunk to such depth as to penetrate such body of water, the Howard well being located at a point eighty-five rods northeast of the French Lick Springs Hotel Company’s premises, and 160 rods from the natural springs of said company, and the Baden-Lick well being located about one-half mile north of such springs. The Howard well was sunk by the Howards with a view of devising some method whereby they might intercept the flow of water into the said natural springs of the French Lick Springs Hotel Company, and thereby de
Some weeks prior to the 18th of July, 1903, the appellant, the Baden-Lick Sulphur 'Springs Company, by Gag-non, who acted for it, also placed a powerful pump in its said well, and operated the same almost continuously up to, on, and after said last-mentioned date, drawing from said subterranean basin more than a half million gallons of water each day, and allowing all of the same to escape into French Lick creek and be wasted; such pumping continuing up to the time of the service of the temporary restraining order herein. Gagnon and the Baden-Lick Sulphur Springs Company knew that the removal of a large quantity of water from said subterranean body would result in the destruction of the natural springs, and after the 19th of July they also knew that the joint action of the Howards and themselves in such pumping was resulting in the injury of such springs, and, with such knowledge, continued-so to pump and waste said waters until said natural springs of the French Lick Springs Hotel Company ceased to flow, and became for the time practically worthless, and so remained until the service of the restraining order.
Neither the Baden-Lick Sulphur Springs Company nor the Howards had any use for the waters so pumped by them through their respective wells from said subterranean basin
About 11 o’clock p. m. on July 21, 1903 (the day prior to the commencement of this action), while the pumps in both of the wells referred to were being operated, John L. Floward, one of the appellant's, visited the natural spring of the French Lick Springs Hotel Company known as “Fluto,” and, finding on examination that the same had ceased to flow, said to his companion: “We.have got her down; she has gone to hell.” John Stevens, Howard’s manager*, after the well was sunk on Howard’s land, and prior to placing a pump therein, said to John C. Howard: “I want you to get me a good pump and put in thex*e, and I will sink old Pluto to hell.” After such pump was procured and placed in operation, and was operated until about the time of the commencement of this action, Stevens again declared: ' “I have them working on old Pluto, and I don’t give a d — n if Pluto goes as dry as a chip.” John L. Howard, before sinking the well referred to, said: “I will drill a hole up there deep enough to reach the sulphur water, and it doesxx’t matter whether it flows out natural or not, for I will put in a compressed air pump, and by this means I can lift the
Dr. John A. Ritter, an old resident of the valley, and landowner there, testified that in 1898 he sunk a well in the valley at a point about a mile and a quarter north of the French Lick springs; that the group of springs in said valley known as the West Baden springs, and a spring owned by one E. B. Rhodes, were situated in the valley between his well and the French Lick springs; that when-
The English and American cases cited by counsel for appellants undoubtedly state the general rules which have been applied by the courts to subterranean waters, and we have no inclination to question their wisdom and authority in the particular cases to which they apply. But there are well-recognized exceptions to these rules, and doubtless further exceptions and departures from them will from time to time be found necessary or expedient. Where the diversion of the water is purely malicious, and is detrimental to another proprietor, it may be prevented by injunction. Miller v. Black Rock, etc., Co. (1901), 99 Va. 747, 40 S. E. 27. So where the water is simply wasted. Stillwater Water Co. v. Farmer (1903), 89 Minn. 58, 93 N. W. 907, 99 Am. St. 541, 60 L. R. A. 875. If the water flows in a definite channel under ground, the same rules apply to it as apply to surface streams, and the landowner can not use or destroy it at his pleasure. Southern Pac. R. Co. v. Dufour (1892), 95 Cal. 615, 30 Pac. 783, 19 L. R. A. 92 and note* And the courts of New York have held that the drainage of land of a private owner by a city pumping works, which exhausts from all the ground in its vicinity the natural supply of underground or subterranean water, and thus prevents the raising on it of crops to which it was or would be peculiarly adapted, or destroys such crops
The strong trend of the later decisions is toward a qualification of the earlier doctrine that the landowner could exercise unlimited and irresponsible control over subterranean waters on his own land, without regard to the injuries which might thereby result to the lands of other proprietors in the neighborhood. Local conditions, the purpose for which the landowner excavates or drills holes or wells on his land, the use or nonuse intended to be made of the water, and other like circumstances have come to be regarded as more or less influential in this class of cases, and have justly led to an extension of the maxim, “Sic utere tuo ui alienum non laedas” to the rights of landowners over subterranean waters, and to some abridgment
The only conclusions Avhich can fairly be drawn from the verified pleadings and evidence in this case is that a bitter rivalry exists between the parties to this action, their stockholders and officers, and that, Ayithout a real necessity therefor, the appellants dug wells and put machinery and appliances in them, and pumped large quantities of water therefrom, for the purpose of stopping the flow of water of the mineral springs on the land of the appellee. The thinly disguised pretext that some of the acts complained of were done in an attempt to repair a well or stop a leak in it, is an insufficient explanation of the injurious proceedings of the appellants, and wholly fails to convince us of their good faith. It appears, also, from the evidence that the connection between the springs on appellee’s land and the subterranean waters on the lands of the appellants is intimate and unmistakable, and that it has been demonstrated by actual experiment that an excessive flow of the waters on the lands of the latter, induced by artificial and unlaAvful means, exhausts the Avater and entirely stops the flow of the springs on the land of the appellee.
Eollowing the lead of the later decisions, which, we think, proceed upon just and correct principles, we are satisfied that sufficient cause was shoAvn by the appellee for the granting of a temporary injunction upon each application therefor, and that the case” presented was such a one, at least, as was proper for the investigation of the court in the interests of justice. Kerr, Injunctions, 14-32. In view of the evidence in the case, the appellants were not entitled to a modification of the order of injunction.
In our opinion, the court did not err in any of its rulings, and the judgment is affirmed