164 Ind. 30 | Ind. | 1904
The appellees, by a complaint in two paragraphs, sought to recover damages from the appellant on account of the alleged pollution of a non-navigable stream on which the farm of the appellees was located, and into which the appellant discharged large quantities of water after the same 'had been used by it in the manufacture of wood-pulp. There was a prayer for an injunction, in addition to a demand for substantial damages. Demurrers to both paragraphs of the complaint were overruled, answers were filed, the cause submitted to a jury for trial, and a verdict returned for $800, of which the appellees remitted $150, and judgment was thereupon rendered for $650. The prayer for an injunction was denied by the court.
The errors relied upon for reversal, and not waived, are the overruling of the demurrers to the complaint, the overruling of appellant’s motion to submit the cause to the court for trial without the intervention of a jury, and the overruling of appellant’s motion for a new trial.
The first paragraph of the complaint, in substance, alleges ownership by the appellees, as tenants by entirety, of 117 acres of land lying on the borders of Buck creek, a small non-navigable stream emptying into White river; that the land, prior to the wrongful acts of the appellant complained of, was suitable for stock raising during more
1. It is objected by the appellant that the lower court erred in permitting the cause to be submitted to a jury, inasmuch as an injunction had been prayed for, hence the case was exclusively of equitable cognizance and should have been tried by the court. As germane to the same contention, appellant insists that the complaint was insufficient, as an application for an injunction, in its averment of facts, and accordingly should have been held bad upon demurrer. When the trial court has placed a reasonable construction upon ■ a pleading which is open to two interpretations, and has proceeded to a determination of the cause upon such an understanding of its scope, this court will not be forward to adopt a different construction and reverse the case. Comegys v. Emerick (1893), 134 Ind. 148, 152, 39 Am. St. 245; West Muncie Strawboard Co. v. Slack (1904), ante, 21.
2. As stated in Monnett v. Turpie (1892), 132 Ind.
What has already been said disposes of the rulings of the court below upon the demurrers addressed to the complaint as an application for an injunction. No question is raised respecting its sufficiency as a complaint for legal damages.
4. A further reason advanced in support of the motion for a new trial is that the court erred in permitting certain witnesses to testify concerning what would’ have been the rental value per acre of the appellees’ land between September, 1897, and June, 1900, if the water of the stream had been pure and cleai*. No fewer than eight witnesses testified, from their own observations, that before the establishment of the appellant’s mill, Buck creek flowed pure and clear water, and that after the appellant commenced operating this manufactory the water was turbid and polluted. They then stated what the rental value of the appellees’ premises would have been between the years specified if the stream had flowed pure water; and also testified to their value with the creek in the condition which prevailed from 1897 until the commencement of the suit. In so doing, the witnesses were not speculating upon a value existing under conditions which they had never observed, but were basing their opinion upon a state of facts known to and observed by them. There was no error in permitting them thus to testify. Yost v. Conroy (1884), 92 Ind. 464, 47 Am. Rep. 156; City of LaFayette v. Nagle (1888), 113
5. We are not favorably impressed with appellant’s objection that these answers respecting value assumed that the depreciation in rental value was due exclusively to the pollution of the stream by the appellant. At the time the questions were asked, there had been no proof of pollution of Buck creek, or of any other circumstance tending to' reduce the value of appellees’ land, except the acts of the appellant; and, if other damaging factors were operative during the period in question, it was incumbent upon the appellant to introduce evidence of them by way of defense, rather than require the appellees to bring them foi’ward in the examination of their own witnesses.
6. If, however, the court erred in admitting the evidence, the error was rendered practically harmless by an instruction given to the jury, in which they were told that they were not bound by the opinion of any witness regarding rental value, but that they might and should determine this fact from all the evidence, including not only such opinions, but also the kind and character of the soil, the location of the lands, the improvements thereon, and all other facts relating to the value of their use.
7. The last reason advanced in support of the motion for a new trial rests upon the exhibition to the jury of certain samples of sediment. In this there was no error, as the samples were shown to have been taken from the stream in controversy within the period for which damages were claimed; they were properly identified; and, though a con
Finding no error in the record, the judgment is affirmed.