26 Ind. 143 | Ind. | 1866
This was a proceeding under the statute by “writ of assessment'of damages,” commenced in the spring of 1865, by Levi Miller aud Isaac Miller, the appellants, against Charles Stowman, the appellee, and others.
The complaint alleged, inter alia, that the plaintiffs were the owners of certain lands, which are particularly described, situated on both banks of Eel river, on which were situated a valuable grist and flouring mill, also a saw mill, of great public utility, the machinery of which was propelled by water from Eel river, by means of a dam across said stream, immediately above said mills, of the height of four feet and six inches, erected in 1844; that the appellee, Stowman, was the owner of certain lands on said stream,
A proper writ was issued ancl a jury impanneled, who returned a finding assessing damages in favor of Stowman. The finding of the jury, so far as it relates to the questions presented for our decision, is, in substance, as follows: That the raising and maintaining of the plaintiffs’ dam to the height of four feet ancl six inches will flow the water back in said river, at the ordinary medium stage of water therein, up to a point on the lands of Stowman twenty rods above where the section line between sections 29 and 30 crosses the same, being about twenty rods up the river, above the mouth of a stream called Spring-brook; that said Stowman was the owner of' a mill ancl mill-dam on his own lands, situated on Ed river, above the clam of the plaintiffs, and that he also owned a mill seat on said river, below his then present mill, and about twenty-seven rods below the clam thereof; that he had made certain excavations upon said mill seat, preparatory to using the same and the water power thereon, and had provided certain materials for a new mill, but that he subsequently quit said work and sold a part of said materials; that said mill seat would be materially injured by the water flowed back in the river thereon, by the dam of the plaintiffs being raised and maintained at the height of four feet and six inches. The jury thereupon assessed Stowman’s damages by reason thereof, and to the excavation made for said new mill, and to his spring-branch, at $1,400, and by the loss of timber and other materials furnished for the new mill $100. The jury further found that the old mill of Stoioman’s would not be in anywise affected or injured by the clam of the plaintiff being raised and maintained four feet and six inches high.
The plaintiffs then replied in four paragraphs. The first was a general denial, but was subsequently withdrawn. The second paragraph admits Stoioman’s title, but alleges that he purchased his lands, mill, &c., long after the erection of the plaintiffs’ dam and mill works, and with full knowledge thereof, and of the extent to which said dam backed the water up said stream, and on the lands so purchased by Stoioman; that the particular tract of land on which Stoioman contemplates building a new mill was purchased by him long after he purchased the old mill property, and long after the plaintiff’s dam was erected, and the water in said stream flowed back, &c.; that no foundation for a mill can be had at the place where Stoioman commenced excavating therefor, for the reason that the bank of Ed river at that point is composed of gravel and quick-sand; that the purpose of the defendant, in the purchase of the tract of land last purchased by him, and in the excavation made and materials furnished, was not to improve his mill privilege and accommodate the public, but to harass the plaintiffs and destroy their valuable mill works, &c.
The third paragraph sets up that when Stowman purchased his land and water privileges, they were improved by a dam and flouring mill situated thereon, erected in 1836; that said dam and mill occupy the only places therefor on Stowman’s land; that where the mill now stands, Stowman has sufficient power, with his present dam, only two feet high, to grind
. The fourth paragraph alleges that before Stowman purchased his mill and mill privileges, the plaintiffs’ dam had been erected, and had ever since been maintained at a height of four feet and six inches, and the water in said stream flowed back upon the site of the new mill, all of which Stoioman well knew when he purchased, and that he purchased said new site and commenced the excavation, not for the purpose or with the intention of erecting -a new mill, but to vex, harass and injure the qdaintiffs.
The court sustained a demurrer to each paragraph of the reply, and the plaintiffs declining to reply further, rendered final judgment against the plaintiffs, dismissing said writ as to Stowman, to all of which the plaintiffs excepted.
The questions presented to this court arise upon the rulings of the court in overruling the demurrers to the third and fourth paragraphs of Stowman’s answer, and in sustaining the demurrers to the second, third and fourth paragraphs of the reply.
It is not very seriously urged by the appellants that the replications constitute valid replies to the answers, if the latter are sufficient to bar the writ for the assessment of damages, but it is insisted that neither paragraph of the answer presents a valid bar. The facts more especially relied upon by the appellee to bar the plaintiff’s right to the. writ, are fully stated in the third paragraph of the answer. Under the facts of the case as thus pi’esented, the appellants do not claim that they have the right to flow the water on StoWman’s land without his consent, and without compensation; but they claim “the right as against his new mill project, to maintain their dam at its present height of four feet and six inches, and to flow back the water on Stowman’s land, by condemning it, and paying the damages.”
Do the facts presented by the record sustain the claim of
The appellants claim that the finding of the jury and the pleadings subsequent thereto, show that their dam was erected, by those under whom they held, more than fifteen years prior to the commencement of the suit against them by Stoioman, referred to in the third paragraph of the answer, and ever since its erection has been maintained at a height of about four feet and six inches; that Stoioman purchased his mill, and the land on which the site of his contemplated new mill is situated, near fifteen years before the commencement of this suit, with full knowledge of the existence of the dam of the appellants, and that it flowed the water back in the river above said mill site; that since Stoioman purchased his mill and lands, the appellants, and those under whom they hold title, had made large and valuable improvements on their mill, during all which time Stoioman silently acquiesced and made no complaint in consequence of the water in said river being flowed back on his land and above his new mill site. It is insisted that these facts estop Stoioman from denying the right of the appellants to maintain their dam at the height of four feet and six inches, by paying the damages sustained by him thereby.
The authorities referred to in support of this position, ai’e either cases of the acquiescence in boundary lines between adjoining proprietors, or those in which the owner of property stands by and sees it sold as the property of another person, without giving notice of his title. They do not sustain the position assumed in this case.
The appellants do not claim the right to flow back the water on Stowmaris land, by grant, prescription, or even by the license of Stoioman, or those from whom he purchased. The act of flowing back the water was an illegal act, a wrong, and the continuance of that wrong without complaint for the period named did not create a right. That
Another position assumed by the appellants’ counsel is, that prior occupancy, in such a ease, gives priority in equity, and that as the appellants’ dam was built and the water flowed back upon Stowman’s land before he commenced to build his new mill, for the purpose of using the water at that point, the appellants have the right to continue their dam and so flow back the water, by paying the damages sustained by Stowman. The cases referred to in support of this position are Seymour v. Carter, 2 Met. (Mass.) R. 520, Cary v. Daniels, 8 id. 466, Smith v. Goulding, 6 Cush. 154, French v. Owen, 2 Wis. 250, and Mason v. Hill, 5 Barn. & Adolph. 1. The Massachusetts cases are decided upon a statute of that state, very different from ours. Smith v. Goulding, supra, was a complaint under the statute. The defendant set up a parol agreement of the plaintiff not to claim damages for flowing his land, if the defendant would erect the dam and mill, and in deciding that the defense was a valid one, it was said by Shaw, C. J.: “ The right of the respondent to erect his mill, and thereby flow the complainant’s land, was not founded on the complainant’s permission; it was a right derived from the statute, which, as owner of the lands, the complainant could not prevent or control.”
It was held in the Wisconsin ease referred to, that any permission or license to overflow the lands of another, to be effectual or permanent, must be expressed by deed or conveyance in writing, but that a parol license in such a case is a good defense to an action of trespass until it is countermanded. These are the only points ruled in the case.
The question involved here is ably discussed in Mason v. Hill, supra, by Denman, C. J., in which the right claimed by the appellants is expressly denied.
These proceedings are under the statute for the “ assessment of damages,” and the rights of the appellants must be
The statute declares what may be appropriated, and provides the mode of the appropriation and assessment of damages, and the appellants, in claiming its benefits, must present a case clearly within its provisions. It is provided by section 700, (2 G. & H., p. 314,) that “In case of an application by any person, after having erected his mill dam, no damages shall be allowed, and the application shall be dismissed, unless the case be such that leave would have been given to build a mill, if the application had been filed before the erection of the mill dam.” This section clearly forbids that the appellants should derive any advantage by having built their dam and flowed back the water before instituting these proceedings. The case must therefore be considered as though the proceedings had been instituted to determine the right to flow back the water and to assess the damages therefor, before building the dam.
Section 684 authorizes the writ to issue in certain enumer-ated cases, the third of which is, “ To assess the probable amount of damages to the lands, creek or spring of another, or the improvements thereon, by the overflow of water ©r otherwise, which may be occasioned by any mill dam already erected, or proposed to be erected.” The sixth is, “ To determine the height to which any person about to build, or having built, a dam may raise the same at any time, without causing back water to flow upon any other mill works situated above on the same water course.”
Section 699 enacts that, “ If it shall appear on the inquest, or by other evidence, that any mill curtilage or garden of any
The judgment is-affirmed, with costs.
Ray, J., dissented.