182 Ind. 438 | Ind. | 1914
This action has its origin in a petition filed by appellees in the superior court of Lake County, asking for the construction of a certain levee in said county. §8188 Burns 1908, Acts 1907 p. 404. The petition alleges that certain lands, described therein, are situate in Lake County and that said lands are the only lands to be benefited or damaged by reason of the construction of said levee. It was regularly docketed as an action pending on October 21, 1912, and subsequently referred to the levee and drainage commissioners for a report thereon. On December 10, 1912, the commissioners filed their preliminary report, setting forth a description of the lands to be benefited or damaged by the construction of the proposed improvement and notice was regularly given to those landowners who were brought in by said preliminary report but not named in the petition. The final report of the commissioners was filed on February 24,1913. In none of these proceedings were the lands of appellant described as being affected by the proposed levee
This petition was overruled and the alleged error in such ruling is the only question presented by this appeal. It has been expressly decided that §273 Burns 1914, §272 R. S. 1881, providing that when a person not a party to an action hut having an interest in the subject thereof may be made a party, is applicable to a drainage proceeding. Zumbro v. Parnin (1895), 141 Ind.
The question which we have to determine, then, is whether on the showing made by appellant’s petition, the trial court was justified in refusing its application to be made a party to the proceeding. The appellant alleges in its petition that although its lands have not been assessed lor benefits or damages, yet said lands will be greatly affected by the construction of the proposed levee, for the reason that said levee would encroach on the free flow of water in the Kankakee River and cause said river to overflow said lands and render them valueless and unfit for cultivation. Whether such allegations are well founded in fact is a matter with which we are not concerned in this appeal. It is for us to determine whether, assuming the allegations of the petition to be true, appellant was entitled to a hearing. This question may be answered by a reference to the language used in some of the decided cases. In Reasoner v. Creek (1885), 101 Ind. 482, 483, it is said, “If a property owner whose land would be injured by overflows which the construction of a ditch would cause cannot secure just compensation because the ditch commissioners decide that it is not necessary to assess him with benefits or damages, then, all that need be done to defeat his rights would be to leave such property out of consideration. Plainly this would be unjust. We can see no reason for holding that a property owner must be denied compensation for injuries merely because the ditch commissioners have not deemed it proper to investigate and report upon his rights, nor because the petitioners have not described his land in their petition. The ultimate and substantial question is, Will the complainant’s land be directly injured? not was his land described in the petition or mentioned in the report of the commissioners? It is not in the power of the petitioners to cut him off from his right to compensation, for that right does not depend upon what the petitioners or the commissioners may do, or omit to do,
Prom the reasoning in the above ease it is apparent that appellant was entitled to be heard on its petition if it further appears from the face of said petition that the construction of the proposed levee would be in violation of appellant’s rights. In Burwell v. Hobson (1855), 12 Gratt. (Va.) 322, 65 Am. Dec. 247, the supreme court of Virginia uses this language: “The maxim sic utere iuo ut aliemm non laedas emphatically applies to the case of a riparian proprietor, and is the true legal as well as moral measure of his rights. He has no right to divert the stream, or any part of it, from its accustomed course, to the injury of other persons. This is a plain proposition, laid down by all the writers on the subject of water rights, and was not denied by the counsel for the appellee. But he contended that it is confined in its application to the ordinary course of the stream, and that a riparian proprietor may lawfully protect his property from floods, by erecting a dike or other obstruction on his own land, though its necessary effect may be to turn the superabundant water on the land of his neighbor. Such a distinction between the ordinary and extraordinary flow of a stream, is not laid down or recognized by any
In the case of New York, etc., R. Co. v. Hamlet Hay Co. (1898), 149 Ind. 344, 347, this court said: “It is next objected that the waters which backed up over appellee’s lands were flood waters occurring during a rainy season, and as such were surface waters against which appellant had a right to build its embankments, even to the damage of appellee. There is no doubt that flood water which leaves the channels of a stream and spreads out over the adjacent lands, running in different directions or settling in pools and flats, ceases to be a part of the stream and becomes in effect surface water. Such however, was not the character of the waters here alleged to have been thrown back on appellee’s land. The complaint says: ‘From time immemorial, during the springtime and rainy seasons of the year, the waters in said river are swollen by rains and freshets, so that the river rises above its ordinary channels and flows in highwater channels, having well-defined beds and banks, and requires for the free passage of the water a much wider waterway than in other seasons of the year.’ It was this water, flowing down the stream within the highwater channels, a part of the river, in fact, that was obstructed by the embankments and thrown back
In Cairo, etc., R. Co. v. Brevoort (1894), 62 Fed. 129, 25 L. R. A. 527, it was held that a riparian proprietor has no right to erect a levee or artificial bank along the margin of a stream which will cause superabundant water in times of flood to flow upon the lands of other riparian owners. The same rule finds expression in the well-considered case of O’Connell v. East Tennessee, etc., R. Co. (1890), 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. 246, where the railroad company was held liable for so constructing an embank
Whether the facts in the case at bar are sufficient to bring it within the doctrine of the cases just above cited is a matter to be determined on proper hearing. The allegations of the petition are sufficient to entitle appellant to such a hearing and the same should have been granted. Judgment reversed, with instructions to allow appellant to intervene and be made a party to this cause, with leave to file a remonstrance, if desired, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 106 N. E. 706. As to what judgments and orders may be appealed from, see 20 Am. St. 173. See, also, under (2) 2 Cyc. 586; (3) 25 Cyc. 190.