40 Ind. 379 | Ind. | 1872
This is an action by the appellant against the appellee, in which there was a jury trial, and a verdict and judgment for the defendant. The parties are the owners of adjoining lands, and the plaintiff alleges that the defendant had obstructed and diverted the flow of a stream of water from its natural channel, and caused it to run upon his lands, to his damage. Pie prayed for judgment for two thousand dollars damages, for the removal of the obstruction, and for a perpetual injunction, etc.
. The answer of the defendant was a general denial, and, secondly, that the plaintiff had previously diverted the said water-course to his injury, and that for his own protection merely he had provided against its flow upon his lands, and caused it to return to the old channel.
There was a reply by general denial to the second paragraph of the answer.
After the return of the verdict, the plaintiff moved for a new trial for the reasons, first, the misconduct of a juror in conversing about the trial when out of court, and offering to wager as to the result; second, because the verdict is not sustained by sufficient evidence; third, the verdict is contrary to law; fourth, misconduct of the jury during the trial of the cause.
The errors assigned are, first, overruling the plaintiff’s motion to strike out the second paragraph of the answer; second, overruling the plaintiff’s demurrer to the same paragraph of the answer; third, the admission of evidence that was contrary to law; fourth, the exclusion of evidence contrary to law; fifth, failure to charge the jury the law in the
The point upon which the first error is assigned is not reserved by bill of exceptions, and cannot be considered by us.
There are two views which may be taken of the second paragraph of the answer. It^either raised no question not involved by the general denial, or it was necessary and proper to show why the defendant made the changes which he was charged to have made in the flow of the water. In either view, the action of the court was not erroneous. Counsel for the appellant speak of this paragraph of the answer as setting up a trespass on the part of the plaintiff, and seeking to compensate the one by the other. We do not regard it in this light.
The third and fourth assignments of errors are only reasons for a new trial. They should have been presented in the motion for a new trial. As they were not, the questions attempted to be presented are not before us. The objections are too general and indefinite also. They do not show what evidence was improperly admitted or excluded.
The fifth and sixth alleged errors must be disposed of in the same way. In the motion for a new trial no complaint is made of the giving or refusing instructions.
The ninth and tenth alleged errors present no question.
The seventh and eighth errors relate to the action of the court in refusing to grant a new trial. For the grounds of this motion we must look to the written reasons for a new trial. The first ground relates to the misconduct of the juror. Affidavits were introduced in support of and against this ground. The juror swore in his affidavit that the persons who made the affidavits in support of the motion were witnesses for the plaintiff on the trial; that during the trial,
We find no available error in the record.
The judgment is affirmed, with costs.