27 Ind. App. 529 | Ind. Ct. App. | 1901
— Action by appellees for damages and injunction. Complaint in two paragraphs, demurrers to which were overruled. Trial by court with special finding óf facts, and conclusions of law. Appellants’ joint and several motions for new trial overruled, and judgment and decree in appellees’ favor. Errors assigned question the rulings on the demurrers and the motions for a new trial, also the correctness of the conclusions of law.
The complaint avers in substance that appellees and appellant Rooker own lands adjoining; that upon appellant’s land are two ravines, from the bants of which and into which water flows from springs throughout the year; that these ravines come together upon appellant’s land, and that the natural outlet for the water is in a depression or pond on appellant’s land and that none of the water from this branch flows naturally upon appellees’ land except in time of overflow; that appellants’ have, without right, wrongfully constructed a dam on appellant Rooker’s land across this branch whereby the water is prevented from following its natural course and running on appellant’s land, but causing the water to leave its natural course and run onto appellees’ land rendering the same unfit for cultivation; that appellants are threatening to' continue the dam and to turn the water from its natural course upon appellees’ land, also> averring damages.
The complaint states sufficient facts to constitute a cause of action. It proceeds upon the theory that appellants have wrongfully diverted a natural water course from their own
The facts found are that appellees own certain described lands, and east and north thereof and adjoining are the lands of appellant. Eooker. A little west of south from the northeast corner of appellees’ land is a pond or basin covering from three to five acres, and west of north of the same comer is a like basin or pond on appellant’s land from two to. five acres in extent. These ponds are about fifteen rods apart and have no natural channel or connection between them, there being a ridge about two and one-half feet high separating them. In 1893 appellees drained the pond on their land, which ditch was and is sufficient to carry away all the water that naturally collects in the pond, and after such drainage, until 1897, the land was cultivated. That north of east from the northeast corner of appellees’ land and upon appellant’s land are two ravines, along which are springs which flow therein, which ravines unite on appellant’s land and form
■As conclusions of law the court stated that appellants, their agents, and servants, ought to be perpetually enjoined from diverting the water referred to from its natural course and thereby running the same on appellees’ land; that they ought to remove any obstruction which they have constructed which diverts the water from its natural course onto appellees’ lands-, and that appellees ought to recover $25 as damages.
One of the questions to be determined was the course and terminus of the water course in question, and it was not error to permit a witness, acquainted with the location, to testify as to his observations of the course of the water a number of years before that. Appellants have not shown how they could be harmed by such evidence.
Objection is made to the testimony of a witness as to the construction of a ditch, some years previous, between the Shirts pond and the Eooker pond. It is true the parties to this action could not be bound by any acts of the witness, but the testimony was proper as tending to show the condition of the lands aro-und the water course in question. Such testimony would not necessarily tend to show a license to flow the water in a particular direction.
Objection is made to the introduction of certain other testimony, but as it is not made to appear how appellants were or co-uld have been harmed by its introduction we do not think it necessary to notice it more fully.
There is evidence to support the findings of the court that the natural outlet of the water was upon appellant Eooker’s land, and that the course had been diverted so that the water is thrown upon appellees’ land. The findings of the court as to appellant Maxwell are supported by the evidence, and as to him the conclusions of law are right.
Appellant Eooker separately moved for a new trial, sepa
In Haggart v. Stehlin, 137 Ind. 43, 22 L. R. A. 577, the owner of the property had rented it to the tenant to be used for the purpose of which complaint was made, received certain rent for that purpose which was more than the property would rent for for any other use. The general principle of law is declared in that case that the landlord is liable when he rents his premises for the purpose of the establishment thereon of a nuisance.
In Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603, cited by counsel for appellees, “The landlord rented the nuisance and took rent for it. The tenants used it and paid rent,
In the case at bar the relief that could be granted was the relief to which the parties were entitled when they brought their action. The record fails to show that appellant Eooker was at fault at that time. The one fact that he is the owner of the land is not sufficient to support a judgment and decree against him. The nuisance was created by the tenant after the beginning of the tenancy, and it is not shown that Eooker had anything to do with its creation or maintenance or that he in fact knew of its existence until suit was brought. 1 Thompson on Keg. 1154 et seq.; 2 Shearm. & Eedf. on Keg. (5th ed.), §708; Wharton on Keg. (2nd ed.), §817; Union Brass Co. v. Lindsay, 10 Ill. App. 583; Shindelbeck v. Moon, 32 Ohio St. 264, 30 Am. Rep. .584; Wood’s Landl. and Ten. (2nd ed.), §381; Deller v. Hofferberth, 127 Ind. 414.
The judgment as to appellant Maxwell is affirmed. As to appellant Eooker, the judgment is reversed, with instructions to sustain his motion for a new trial.