52 Ind. 334 | Ind. | 1876
The appellant, who was defendant below, assigns three errors in this case, viz.:
1. Overruling the demurrer to the complaint.
2. Sustaining the demurrer of the appellee to the second paragraph of the answer.
3. Overruling the defendant’s motion for a new trial.
It is stated in the complaint, that the plaintiff ip^and for twenty years last past has been, the owner of certain real estate, particularly described in the complaint; and that the defendant is and has been the owner of a certain other tract of land; that there runs through the lands of the defendant a natural stream of water, about thirty rods from the line dividing the lands of plaintiff and defendant; that the lands of the plaintiff are low and wet, and require draining, and that there is no outlet for that purpose, except through the lands of the defendant into said stream; that, in the year 1858, the defendant’s father, Ellis Hodgson, was the owner of the land now owned by the defendant, and continued to own and occupy the same until about a year ago, when he
It is hardly necessary to re-examine the authorities bearing on the question here involved, as the law with reference to it seems to be settled in favor of the sufficiency of the complaint. The question is, whether the license given by
In the second paragraph of the answer, the defendant avers that at the time his father gave consent to the plaintiff to cut said ditch, if he ever gave any such consent, the land was in woods, and he did not and could not foresee that it would be of any particular injury to him; that both tracts of said land were to a great extent covered with brush, prairie grass, logs, etc., and no great amount of water seemed to accumulate in or on the same, and since that time the plaintiff and the father of the defendant, as well as the defendant himself, have cleared their several tracts of land and put the same in cultivation; that the plaintiff owns over two hundred acres of land, and the defendant owns but forty acres of land, described in the complaint; that since the land of defendant has been cleared oflj the water accumulates and runs to the head of said ditch more rapidly than before, and is thrown upon said defendant’s lands by means of said ditch in large currents and freshets, and, without any direction so to do from the defendant or his father, the plaintiff has cut a system of lateral ditches on his own ground into said main ditch, and thereby augmented the rapidity of the flow of the water on the defendant’s land; that since the land of defendant has been cleared and cultivated, and the roots have rotted away, the soil has become much more por.ous and susceptible of washing; and that said ditch is now, and has been for years past, doing great damage to the defendant’s land; that said water has washed away the soil and widened said ditch, and thereby diminished the value of defendant’s land, and is constantly encroaching upon the defendant’s soil and washing the same away, and has washed in many places sixteen feet wide; that during the time of freshets and high waters the natural stream passing through
This paragraph of the answer is pleaded, and its sufficiency urged, on the ground that it sets up counter equities by showing that, although the license was given, yet the injuries resulting were unforeseen by the licensor. We do not think this answer a good bar to the action. Parties cannot be Relieved from such acts on the ground that they did not foresee all their consequences.
Under the last error assigned, it is contended that the court erred in allowing the plaintiff to testify to the grant of the license by Ellis Hodgson. The ground of the objection Was, that Ellis Hodgson was dead, and that according to the statute, 3 Ind. Stat. 560, sec. 2, his statements could not
Again, it is urged that the court erred in allowing the plaintiff to testify that he had no other outlet but the main ditch for the water flowing in the ditches cut by him on his own land, and in refusing to allow the defendant to prove that the plaintiff had another convenient outlet over his own land to drain his marshy and wet lands. It is claimed that these rulings of the court were inconsistent, and that one or the other of them must be wrong. The admitted evidence, it is claimed, had no tendency to prove the license, that is, that to prove that there was a necessity for a drain did not tend to prove that a license was given to construct one. We think, if the only purpose of the evidence was to show a necessity for a drain, that it should have been excluded. But the evidence went to show that if the main ditch was obstructed, the smaller ditches, constructed by the plaintiff on his own lands, emptying into it, would become valueless, and was, we think, properly admitted to show the extent of the injury to the plaintiff from the obstruction of the main ditch. The offered evidence was not to meet the admitted evidence, and show that the water accumulated in the ditches on the plaintiff’s land could be carried off without the aid of the ditch through the defendant’s land j but it was to show that the plaintiff had another convenient outlet over his own land to drain his marshy and wet land. The offered evidence was properly excluded, because it did not meet any evidence admitted or properly admissible in the case, on the part of the plaintiff.
It is next urged that the court improperly refused to allow
We think the evidence was properly excluded. We cannot see that the .offered evidence had any tendency to establish either view presented. The acts sought to be proved were those of one of the parties to the arrangement, with which the other party was not shown to have had any connection. Again, we cannot see why the defendant’s grantor might not have chosen to construct his buildings near to the ditch as well as at a distance from it, without thereby affording any inference that he was opposed to the existence or continuance of the ditch. Nothing favoring the defendant could properly be inferi’ed from the facts which he sought to prove.
It is next submitted that the court erred in refusing to propound to the jury an interrogatory asked by the defendant. Several answers are urged to this question. A sufficient one is, that the jury were not by it directed to answer it in the event that they found a general verdict. It is only in this conditional form that interrogatories can be properly asked. 2 G. & H. 205, sec. 336. This rule has been applied in many cases, which, however, we need not cite.
Counsel call our attention, in a general way, to the instructions given and those refused; but no specific objection is pointed out to any of those given; nor is it claimed that any particular instruction asked was improperly refused. Two exceptions should be made to this remark, and they are as to charge number 2 given, and charge number 5 refused.
Charge number 2 given is as follows: “ 2. If the drain
The fifth charge asked and refused is as follows: “ 5. The existence of the ditch upon the land, when it was purchased by the defendant, is not sufficient notice to him that the plaintiff, or any one else, had or held any right to keep and maintain the same.”
We think there was no error in this action of the court. It will be observed that the court only told the jury that they might infer notice to the defendant from the existence and use of the ditch, not that they were bound to do so, or that the inference or presumption was conclusive. If the fact of notice was material, and, in fact, the defendant had not such notice, he might have met the inference or presumption to be drawn from such facts by counter evidence.
This was an artificial watercourse, of considerable width and depth, passing near the buildings on the land, and was intersected by smaller ditches coming from the lands of the plaintiffj and, we think, in the absence of anything to the contrary, it might be fairly • presumed therefrom that the defendant had notice of such facts, and of the plaintiff’s rights, at the time of his purchase. Paul v. The Connersville, etc., R. R. Co., 51 Ind. 527.
These are all the questions which are made by counsel in their briefs.
The judgment is affirmed, with costs.