50 Ind. App. 685 | Ind. Ct. App. | 1912
— This action was brought in the Whitley Circuit Court by appellants to restrain the town of Churubuseo and the contractors from constructing a storm and sanitary sewer within the town of Churubuseo, and connecting the same with an open ditch outside of the corporate limits.
Appellants Geiger and Smith each owned about two acres of land just east of the town limits, through which one of the branches of the tiled portion of the ditch in question passed, and appellant Duglay was the owner of about seven acres of land lying outside of the town limits, through which the open portion of the main line of the ditch extended. The lands owned by each of the appellants were assessed in small amounts for the cost of constructing this ditch, and the town of Churubuseo, in its corporate capacity, was assessed over $1,300 of such cost on account of benefits to its streets and alleys. Prior to the construction of this ditch, the town had constructed tile drains, for the purpose of draining the surface-water from its streets and alleys, and after this time numerous other drains were made for a like purpose, and connected with the tile in the Tope ditch. In the year 1907 the town constructed a sewer extending along Main street, called the South Main street sewer, which connected with a branch of the Tope ditch, and was used to some extent for carrying sanitary sewage.- The court also finds that before the construction of the Main street sewer, the open portion of the Tope ditch became obstructed just below the terminus of the tile, and it so remained until August 1,1909, at which
As its conclusions of law the court found that appellants take nothing by their suit, and that the appellees recover their costs.
The action of the trial court in overruling appellants’ motion for a venire de novo is the first error relied on for reversal.
The special finding of facts fails to show that plaintiffs or any one of them has suffered, or is about to suffer any such serious loss or inconvenience as would justify the court in granting an injunction. The burden of proof as to such facts rested on the plaintiffs, and a failure to find them is a finding against the plaintiffs as to such facts. Spraker v. Armstrong (1881), 79 Ind. 577; Vannoy v. Duprez (1880), 72 Ind. 26. The facts specially found by the court are not sufficient to warrant a judgment in favor of appellants, and the court committed no error in overruling this motion.
Judgment affirmed.
Note. — Reported in 98 N. E. 77. See, also, under (1) 38 Cyc. 1990; (3) 22 Cyc. 769; (4) 3 Cyc. 360. As to injunction and abatement in a ease based on what must prove a nuisance, see 118 Am. St. 878.