1 Ind. 285 | Ind. | 1849
Trespass on the case. The declaration contains two counts. The first count alleges that the plaintiff is the owner of certain real estate in the county of Franklin, upon which are erected several mills supplied with water from the West Fork of the White Water river; and that the defendants erected a feeder-dam for their canal across said stream, and by means thereof diverted the water from Ms said mills, &c. ’ The second count is similar to the first, with the additional averment that the plaintiff, on the 1st day of February, 1845, filed Ms claim for damages in that behalf under the 11th section
The only questions for this Court to decide are presented by the demurrers.
The eleventh section of the defendant’s charter, which is a public act, provides, “ that whenever any land, water, or materials shall-be taken for the construction of said canal, or any of its feeders or works connected therewith, and the same shall not be given or granted to said company, and the proprietor or proprietors do not agree with said company as to the compensation to be paid therefor, it shall be lawful for the person or persons claiming compensation as aforesaid, to select for themselves one arbitrator, and the company shall select another, and the' two thus selected shall take to themselves a third, who shall award as arbitrators between the parties, and report the result of their award in writing to the secretary of said company, who shall enter the same at full length, with the other proceedings properly appertaining to said arbitration, in the books of said company.” The remaining portion of the section prescribes the manner in which either party may appeal from such award to the Circuit Court having jurisdiction.
It is contended, by the counsel for the plaintiff, that the method thus pointed out by the charter for obtaining compensation when the property of individuals has been taken by the company for the purpose of constructing their canal, is cumulative only, and does not take away
The judgment is affirmed with costs, &c.
See Stowell v. Flagg, 11 Mass. R. 364.—Stevens v. Middlesex Canal Co., 12 id. 466.—Callender v. Marsh, 1 Pick. 430, and Jackson v. Winne, 4 Little’s R. 327-8.