6 Ind. App. 538 | Ind. Ct. App. | 1893
In the year 1866, one Andrew 0. Porter, •owned certain lands situate within two miles of the city of Shelbyville. The said city desired to drain certain lands and lots within, and adjacent to, its corporate limits, and had instituted legal proceedings by its common council for that purpose. The projected drain extended through
The contract was duly signed and acknowledged by Porter and wife, and by the mayor of the city. Appellant afterwards, in the year 1873, by deed of conveyance from Porter and wife, became the owner of the Porter-lands. The alleged breach of the above stipulation, on the
His complaint is in three paragraphs.
The first charges that the defendant failed, neglected, and refused to keep said ditch cleaned out, so as to keep it of the dimensions as originally constructed, and that, by such failure, neglect, and refusal, he, the plaintiff", has been unable to drain his lands as he could have done had said ditch been so cleaned out; that he had no other way of draining his lands; and that, by reason of said failure on the part of said city, his lands were made wet so that the grain and grass growing upon said lands wore destroyed thereby, to his damage in the sum of three hundred dollars.
The gist of the second paragraph is that the city took possession of said strip of land under said contract, “ and constructed a ditch through and upon the same, and has ever- since occupied said lands, and keeps said ditch partly open, and uses it for the purposes of drainage, but that said city did not construct said ditch of sufficient capacity to carry off the water in a reasonable time that accumulates along the line of said ditch, and that said city has and does fail, neglect, and refuses to so construct said ditch, clean, repair and keep the same open in such a manner as to enable him, the plaintiff, to drain his lands free of charge by outlets into said ditch; ” that on account of such failure his land was made wet, and the grain and grass growing on the same were destroyed, and his land rendered unfit for the purpose of growing grain and grass, to his damage in the sum of three hundred dollars.
The third paragraph proceeds much the same as the second, but contains these additional averments: “ That one, Thomas Fortune * * *. filed his petition before the board of commissioners of said county, praying for the location of a ditch from his lands in the said city, to and intersecting with said ditch at a point just north of said lands of the plaintiff, and laying said ditch thence on
A demurrer for want of facts was overruled to the first and second paragraphs, and sustained to the third.
Five paragraphs of answer were filed.
Demurrers were sustained to the second, third, and fifth, .and overruled to the fourth. The cause was put at issue and tried by the court. At the request of the appellant, the court made a special finding of facts, and stated the conclusions of law thereon.
The court made a finding in favor of the appellant, and rendered judgment in his favor in the sum of one dollar, and judgment for all costs in the case in favor of the appellee. Appellant made a motion for a judgment of $400 in his favor; this motion being overruled, he excepted to the conclusions of law. Appellant assigns as error all the rulings of the court adversely to him, and the appellee assigns as cross-errors all the rulings of the court adversely to it. Ve are required at the threshold to determine the sufficiency of the complaint. Unless it states a cause of action, none of the assignments will avail the appellant. If the contract declared upon in each paragraph of the complaint existed between ordinary persons, the stipulation to keep the drain in • repair would run with the easement, and inure to the benefit of the heir, assignee or grantee. Midland R. W. Co. v. Fisher, 125 Ind. 19; Louisville, etc., R. W. Co. v. Power, 119 Ind. 269; Hazlett v. Sinclair, 76 Ind. 488.
Cities have the power to drain any lot or parcel of ground within their corporate limits, or within two miles thereof, whenever the water has or may become stagnant, or noxious, or injurious to the health or comfort, at the expense of the owners thereof, under such reasonable regulation as the council may prescribe. Section 3106, subd. 1, 2 and 26, D. S. 1881. And they may acquire the easement
Judgment affirmed.
Reinhard, C. J., not present.