39 Ind. App. 294 | Ind. Ct. App. | 1906
Lead Opinion
Appellant’s complaint was in one paragraph. Appellee answered by a general denial. Trial by jury. General verdict for appellant assessing damages at $850. Appellee’s motion for judgment on answers to interrogatories returned with the general verdict, was sustained. This action of the court is challenged by the assignment of errors.
Judgment reversed. Cause remanded, with instructions to overrule appellee’s motion for judgment on answers to interrogatories and for further proceedings.
Rehearing
On Petition for Rehearing.
The argument in support of this petition is based principally upon the assertions that §5153 Burns 1901, §3903 E. S. 1881, does not give the railroad company the right to cross a stream such as the one shown in the case at bar, “because the right exists independent of the statute, and it was in no way enlarged by it;” that “the statute relied on, * * * in so far as it refers to watercourses, gives no rights except as to navigable streams;” that the effect of the obstruction complained of is to create a private and not a public nuisance.
By sections one, two and three of an act in force May 6, 1853 (1 E. S. 1852, p. 409, §§5134-5136 Burns 1901, §§3885-3887 E. S. 1881), provision is made for the formation of a corporation for the purpose of constructing, owning, and maintaining a railroad. Section thirteen of said act (§5153 Burns 1901, §3903 E. S. 1881), confers upon such corporation certain powers which are thereunder expressly made subject to the liabilities and restrictions expressed. .These powers as enumerated in the various subdivisions may be epitomized as follows: (1) To make necessary examination and survey for the proposed road; to enter upon the lands or waters of any person, “but subject to responsibility for all damage which they shall do thereto.” (2) To take voluntary grants and donations. Eeal estate thus received to “be held and used” for the purpose of such grants only. (3) To purchase and hold lands and other property necessary to accomplish the ob
The petition for a rehearing is overruled.
Dissenting Opinion
Dissenting Opinion.
I could not concur with my associates in the decision of this cause, and the prevailing opinion discloses my dissent. It was not my intention at the time to write a dissenting opinion, but, upon reflection and further consideration, I have concluded to state, as briefly as I can, my reasons for dissenting. To do this satisfactorily to myself, I desire to state the substance of the complaint, and all the important facts, specially found.
Opposing counsel do not agree as to the theory upon which the complaint proceeds, and while I do not think it makes any material difference, as affecting the decision, I quote from the complaint as follows: “That when said railroad, now owned, maintained, and operated by the defendant, was constructed on and across the lands now owned by the plaintiff and above described, it was built and placed upon a high embankment; that said embankment was so made across said branch or creek; that in order to permit the free flow of water in said branch or creek, through and across said embankment, said defendant’s predecessor in the ownership of said road built and maintained
It will be observed that it is first charged that within the last five years the “defendant, or its immediate predecessor in the ownership of said road,” placed in the opening in the embankment an iron pipe for the flow of the water. It is then averred that appellant has been the owner of the road for more than five years, etc. The first aver
The evidence is not in the record, and no attempt has been made to bring it in. In the absence of the evidence, and as the jury returned a general verdict for appellee, all reasonable inferences in support of that general verdict will be indulged. It must, therefore, stand, unless the facts specially found are in irreconcilable conflict with it, and in that event it must yield to the more potent influence of the facts which antagonize it. The following interrogatories and answers show that appellant’s predecessor put in the pipe, and that its railroad right of way was afterward conveyed to appellee in the condition in which it was when the injury to appellant’s property occurred: “Was said iron
Having tried to state fully and fairly the issues tendered by the complaint, the facts as specially found, and the opposing and conflicting positions assumed by counsel, I now direct my attention to the prevailing opinion, before entering upon a discussion of the legal questions involved. If I comprehend the opinion correctly, appellee is held liable, not for creating, but maintaining the nuisance, on the theory'that it is a direct violation of the statute; that “e'aeh day of the continuance of such obstruction is a fresh violation of the statute,” and “that an act done in defiance of a mandatory statute is essentially unlawful.” The statute which my associates consider as controlling is sub
That the obstruction of the street was a public nuisance fully appears from the following quotation from State v. Louisville, etc., R. Co., supra: “The doing of a lawful act in an illegal and wrongful manner may cause the thing done to be treated as a public nuisance. * * * A railroad company having the right to use the streets may unquestionably be subject to indictment if it so abuses its rights and privileges as unnecessarily or unreasonably to encumber or obstruct the streets.” The remaining ease cited is Lake Shore, etc., R. Co. v. McIntosh (1895), 140 Ind. 261. That case grew out of an improper condition of a public crossing, and it was alleged that appellant had full notice of the fact. While the court held that the complaint charged that appellant created the condition, yet it would be liable because it still maintained and used the negligently constructed crossing. That was also a public nuisance. The opinion refers to the act of appellee’s predecessor as “done in defiance of a mandatory statute,” and says that it was “essentially unlawful.” In the case of
Appellee’s grantor had a right, both under the statute and at common law, to do what it did, subject, of course, to the conditions prescribed by the statute. It did a lawful act upon its own premises, and, in the absence of wilfulness or negligence in doing it, as it was not an insurer, it would not have been liable, and its grantee, without notice, certainly would not be liable. The only charge in the complaint is that the opening was negligently reduced, but there is no charge of negligently continuing the condition. If the rule declared in Cleveland, etc., R. Co. v. Wisehart, supra, is the law, and it must be so accepted, I cannot see how the act of appellee’s grantor was essentially unlawful, or done in defiance of a “mandatory statute.” It is my judgment that this statute gave to railroad companies no rights or privileges which they did not possess prior to its enactment, or place upon them any new duties or burdens. They possessed the right to construct their roads over and across streams or watercourses, and at common law were required to do the very things enjoined by the statute. It has always been the law that one riparian owner cannot obstruct the flow of water so as to impair its usefulness to other riparian owners, or cause water to overflow to their
It must be assumed that appellee’s grantor owned its right of way. As such right of way crossed this watercourse, it owned the bed thereof the entire width of its right of way. Sphung v. Moore (1889), 120 Ind. 352; Bonewits v. Wygant (1881), 75 Ind. 41; Bidgway v. Ludlow (1877), 58 Ind. 248; Ross v. Faust (1876), 54 Ind. 471, 23 Am. Rep. 655; State v. Pottmeyer (1870), 33 Ind. 402, 5 Am. Rep. 224. It therefore follows that appellee, as grantee, owns all of the title which there is in the land over which the stream flows. It cannot be successfully denied that the nuisance is a private one; that there are no averments in the complaint that appellee knew of its existence, and no facts found that can lead to the conclusion that it did know of it.
With this review of the opinion, and the authorities in support of it, I proceed to the consideration of appellee’s liability, under the averments of the complaint and the facts specially found. Upon the theory of the -complaint it was not necessary to' aver and prove notice to appellee before the commencement of the action. But it was necessary to prove that it created the nuisance complained of. It is established by the great weight of the authorities that while it is not necessary to notify one whose act or acts constitute a nuisance, or request him to abate it, yet, where the property upon which it is created is transferred to another during its existence, such grantee is not liable for its continuance until it has been notified of the fact that it is a nuisance or has been requested to abate it; Unless it appears that he had full knowledge of the facts which would have been conveyed to him by such notice. He who creates or originates the nuisance continues liable. But the party
Counsel for appellant in their brief say that the theory of the complaint is to recover damages for the maintenance of the obstruction and nuisance during the past three years. If I should accept the view thus expressed by counsel (which I cannot do, from what I have already said), the case last cited, which I accept as authority, would be fatal to appellant’s contention. In harmony with that case is that of Groff v. Ankembrandt (1888), 124 Ill. 51, 15 N. E. 40, 7 Am. St. 342. In that case the injury occurred by reason of damming the flow of a watercourse, and there was no averment that the dam constituting a nuisance was erected by the defendant, and so the court held that it must be assumed that the charge was that the defendant was liable for continuing it. In the course of the decision the court said: “Where a party comes into the possession of
The case of Central Trust Co. v. Wabash, etc., R. Co. (1893), 57 Fed. 441, is directly in point. It had relation to a culvert which was built over a small stream. Action was brought to recover damages against a subsequent owner of the property because the culvert was not made large enough. It was there assumed by the court that it was the duty of the railroad company to exercise reasonable care in constructing passageways for water under its bridges and through its embankments so as not unnecessarily to impair its flow. The question there for decision was, whether the Wabash, St. Louis & Pacific Railway Company, who had succeeded by purchase to the rights of the property, etc., of the company which constructed the embankment and culvert, was responsible for damages resulting from the failure of its remote grantee to construct a sufficient embankment and culvert over the watercourse. In his opinion
While there are many additional cases affirming the same rule of law, and while the standard text-writers all approve it, it would be useless to make further quotations from them. I cite some of the leading eases and text-books: Leahan v. Cochran (1901), 178 Mass. 566, 60 N. E. 382, 53 L. R. A. 891, 86 Am. St. 506; Slight v. Gutzlaff (1873), 35 Wis. 675, 17 Am. Rep. 476; Staples v. Dickson
In the light of the authorities, and upon the question tendered by the issues, I am led to the conclusion that appellant is not entitled to recover. This being true, the petition for a rehearing should be granted, and the judgment affirmed.