48 Ind. App. 238 | Ind. Ct. App. | 1910
Appellees were the owners as tenants by the entirety of a tract of land in Randolph county, Indiana. Appellant was the owner of an oil and gas lease on an adjacent tract. Appellee Charles Jackson instituted this action against appellant to recover damages for injuries claimed to have been caused to said real estate by salt water from one of appellant’s wells. A change of venue was taken to the Delaware Circuit Court, in which court, on motion of Charles Jackson and on petition by Cora B. Jackson, she was made a party plaintiff.
The amended complaint, upon which the case was tried, avers, in substance, that Orlie Jones owns a tract of land in Randolph county; that appellees’ land adjoined the Jones land on the east; that the Jones land was higher, and sloped towards the land of appellees, and the surface-water on the Jones land naturally flowed down upon the land of appellees; that Jones leased his land to appellant for the purpose of producing gas and oil; that appellant put down thereon a great number of wells to a great depth, and pumped, and continues to pump, therefrom large quantities of oil and water strongly impregnated with salt and with noxious and poisonous minerals, which it discharged upon
Appellant answered in three paragraphs. The first was a general denial; the second, after admitting the putting down of the wells and the operation thereof, as charged, averred that said wells were drilled to the proper and ordinary depth for the production of oil, in the most skilful way; that said wells were operated and said oil was produced in the most skilful manner; that appellant was never guilty of any negligence in operating said wells, or in producing oil therefrom, or in allowing oil or salt water to escape; that said water, when produced, was allowed by appellant to flow upon the ground, and was allowed to seek its course and escape by its own volition, and that it coursed its way by its own volition, and went upon the lands of appellees, because the land upon which the appellant was operating its said Wells was higher than the lands of appellees; that there was no method by which oils could be produced from said wells without the production of salt water, and that said wells could not be operated for oil unless said salt water was allowed to run on the lands of appellees; that any damage thereby caused was absolutely necessary, and could not be
In the case last cited, which is the leading ease on this subject, the rule is laid down as follows: “We think that the true rule of law is, that the person who for his own
A city may, under certain circumstances, when necessary for the purpose of sanitation, discharge its sewage into a natural watercourse, and thus render its pure waters impure, to the injury of lower riparian owners, without liability for such injury. City of Richmond v. Test (1897), 18 Ind. App. 482; City of Valparaiso v. Hagen, supra.
The development of the country and the rapid growth of cities and towns, with their consequent accumulation of filth and sewage, which is being cast into the ponds, streams and watercourses, to the great danger of the public health, has produced a condition that calls for a restriction, if not an abridgment, of the rules laid down in the cases of City of Richmond v. Test, supra, and City of Valparaiso v. Hagen, supra. And in this connection attention is called to an act for the protection of streams, enacted by the General Assembly of 1909 (Acts 1909 p. 60). But notwithstanding the various enlargements, in other respects, of the general rule, the law still is, that a city has not the right to collect its- surface and subterranean waters into sewers, impregnate them with its filth and sewage, and cast them upon the surface of its land where, by the laws of gravitation, they flow not by watercourses, but upon the surface onto the lower adjoining lands, and render them unfit for cultivation and habitation. City
For the foregoing reasons, we hold that the averments of the complaint show a liability of appellant to appellees for the injuries charged.
This is an active, aggressive wrong, and contributory negligence does not enter into the question of liability. City of Lebanon v. Twiford, supra; Muncie Pulp Co. v. Martin (1899), 23 Ind. App. 558; Williamson v. Yingling (1881), 80 Ind. 379; T. A. Snider Preserve Co. v. Beemon (1901), 22 Ky. Law 1527, 60 S. W. 849; Paddock v. Somes (1890), 102 Mo. 226, 14 S. W. 746, 10 L. R. A. 254.
In the cases of T. A. Snider Preserve Co. v. Beemon, supra, and Paddock v. Somes, supra, the following from Wood, Nuisances (2d ed.) §435, is quoted with approval: “Neither does it make any difference or in any measure operate as an excuse that the nuisance cannot be obviated without great expense, or that the plaintiff himself could obviate the injury at a trifling expense. It is the duty of every person or public body to prevent a nuisance, and the fact that the person injured could, but does not, prevent damages to his property therefrom, is no defense either to an action at law or in equity. A party is not bound to expend a dollar, or do any act to secure for himself the exercise or enjoj'ment of a legal right of which he is deprived by reason of the wrongful acts of another.” The law of contributory negligence has no more place in an action of this sort than has the law of self-defense.
Under the statute, when a cause is venued from one county to another, the clerk of the proper court of the latter county shall receive the transcript and papers, docket the action in its order among the other causes, and the cause shall be tried, or otherwise disposed of, in the same manner as if it originated in said court (§424 Bums 1908, §413 R. S. 1881), and the latter court has whole and sole jurisdiction
If the amendment and addition, as here made, could properly be made in a case originating in said court, the same amendment and addition eopld be made in a cause brought there on a change of venue. The amendment made no new cause of action, and required no new defense, and therefore was one that properly might be made. 1 Hogate, Pl. and Pr. §606.
Complaint is made of the giving of instruction fifteen. By this instruction the jury was told that in assessing damages it should consider the difference in the fair rental value of the farm of appellees from January 1, 1905, to October 16, 1906. The objection to this instruction is that it authorized the jury to assess damages accruing after the bringing of the action.
The purpose of such supplemental complaint is to bring into the record new facts that have accrued since the commencement of the action, so that the court may render judgment upon the facts as they exist at the time of its rendition. Musselman v. Manly, supra; Pouder v. Tate (1892), 132 Ind. 327.
•A supplemental complaint is not an amendment to the complaint; but its office is to bring forward a matter, proper to be litigated, along with the matters contained in the original complaint, that has accrued since the commencement of the action, and it assumes that the original complaint is to stand as it originally stood. Chapman v. Jones, supra; Pouder v. Tate, supra.
Applying these rules, it seems proper in a ease like this to file a supplemental complaint, and litigate the question of damages up to the time of the filing of such supplemental complaint. This is in entire accord with the theory of the uses of the supplemental complaint. Otherwise a supplemental complaint would serve no useful purpose. There was
The establishment of the foregoing principles determines all the other questions presented.
Judgment affirmed.