161 Ind. 113 | Ind. | 1902
— By sustaining appellant’s petition for an order of transfer under clause 2, §10, of the act of 1901 (Acts 1901, p. 565, §1337j Burns 1901, 6565f Horner 1901), this court lias vacated the decision of the Appellate Court, and lias brought this cause here for final determination.
This suit was brought by the appellant against appellees, husband and wife, to compel them to allow appellant to repair a tile ditch which he had constructed at his own expense, under an oral license, across real estate owned by appellees, for the drainage of appellant’s real estate and said real estate of appellees; to restrain appellees from removing the tile, or interfering with the ditch after its repair ; for the specific performance of said oral license; and for damages. Appellant filed an answer in two paragraphs. The first was a general denial; the second, a plea of former adjudication. Before the trial there was an agreement in open court, entered .of record, that the complaint was denied in due and legal form, and “that all affirmative defenses and all affirmative matters in reply thereto might be
The errors assigned call in question each conclusion of law and the action of the court in overruling appellant’s motion for a new trial.
It appears from the special finding of facts that prior 'to July, 1894, a public ditch had been constructed across the land of one Eoberts, and that for the construction of said ditch the lands of the appellant, appellees, and said Eoberts had been assessed; that said public ditch furnished the most convenient arid natural outlet for the drainage of appellant’s. land, but the same could not be drained without a tile ditch across the land of appellees and the land of said Eoberts tc said public ditch. During said month of July, by an agreement between appellant and appellees, permission was granted appellant by appellees, and also by said Eoberts, to construct a tile-drain across the lands of appellees and said Eoberts to said public ditch; that pursuant to said license, upon a line selected by appellees, appellant constructed a tile ditch from his said land across the lands of appellees and said Eoberts to said public drain;1 that said tile ditch, when so constructed, connected- with a system of ditches on appellant’s land, and properly and effectually drained the same. Said ditch was so constructed with the knowledge and consent of appellees, at an expense to appellant of $100. “Afterwards, in March, 1896, appellee George W. Broe dug up twelve feet of the tile ditch so constructed by appellant, where it entered the lands of appellees, and thereby wrongfully obstructed the flow of the water through said tile ditch, and rendered the same of no value to appellant for the drainage of his land; and said appellee wrongfully refused to permit appellant to enter upon his land for said purpose of repairing said tile ditch, and still so' refuses to permit appellant to enter upon
In August, 1897, appellant brought an action against appellee George W. Broe in the Benton Circuit Court. The complaint was in two paragraphs. It was alleged in the first paragraph, in substance: “That plaintiff [appellant] was the owner of certain real estate in Benton county, Indiana [describing it], and that defendant was the owner of real estate in said county and State [describing it], and that they were such owners at the time of the grievances hereinafter complained of; that for the betterment and benefit of said real estate, together with other real estate in the vicinity thereof, a public ditch was constructed under the drainage law of this State, and said public ditch was so constructed through and across the land of one Roberts [describing said land], and the lands of plaintiff and said defendant wore assessed as benefited by the construction of said public ditch, and the same afforded drainage for each of said tracts of land; that said defendant’s land lies immediately between the land of plaintiff and the land of said Roberts, and the only natural and convenient way to drain plaintiff’s land into said public ditch was by going through the land of said defendant, and plaintiff was about to resort to the remedies afforded him by the drainage laws of this State and thereby to obtain the right to enter upon the land of the defendant, and to put across it a tile ditch, but the defendant, to save the trouble and the expense of such legal proceedings, entered into a parol agreement with plaintiff whereby it was agreed by and between them that if the plaintiff would furnish the tile, and in all things construct at his own expense a tile-drain across the defendant’s land, and continue it over the land of Roberts, sufficient to connect with the open ditch, the plaintiff should have the right of way across defendant’s land, without going to the cost and trouble of legal proceedings; that, pursuant to this agreement, the plaintiff, in 1894,
The second paragraph of complaint, as set forth in the special findings, in addition to the averments in regard to the ownership of the lands, the making of the public ditch, the agreement for the construction of the tile ditch across the lands of appellees and Roberts, its construction under said oral license, alleged that said appellee “wrongfully, wil
Appellee George W. Broe, the defendant in said cause, filed a general denial to said complaint, and the issues there presented were tried by the court and jury, and a verdict returned in favor of appellant, assessing his damages at $181, $40 of which was remitted, and judgment was rendered for the residue, $141 and costs.
“Upon the trial of said cause appellant introduced, among other things, evidence of the total cost of the construction of said tile ditch across the lands of appellees and said Roberts to said public ditch, and claimed as a part of his damages in said cause the entire cost and expense incurred by him in the construction of said ditch; and the court in said cause instructed the jury that appellant was entitled to recover, if he was entitled to recover at all, as a part of his damages in said cause, his expense in the construction of said ditch, and under said instructions of . the court appellant was allowed, as a part of his damages, his entire expense and outlay in constructing said tile ditch which appellant seeks to open and have maintained. After the termination of said cause, appellant demanded of appellees permission to enter their premises for the purpose
The court stated as conclusions of bnv: “(1) That appellant is estopped by the recovery of the judgment for damages in the former action against said appellee from waging this suit; (2) that the appellant is not entitled to recover.”
EAren if the facts alleged in the first paragraph of complaint in the former case entitled appellant to recover damages only for the wrongful obstruction and interference with said easement, upon the theory that appellant had the right to the future enjoyment of the easement after the recovery of such damages for past trespasses only, it is clear that the second paragraph was capable of being given a much broader scope by the parties and the court upon the trial. It alleged that said appellee had deprived appellant of the use of said ditch, and that his declared purpose was to continue to deprive him of the easement and the use and benefit of said tile ditch. To recover the cost of the construction of said tile ditch was entirely inconsistent with the recovery merely of damages for the past injury, leaving the easement unimpaired for the future, but would be consistent only Avitli the theory that the damages recovered were for the loss of the easement. It is true that it has been held in this and in other states that when money is expended on the faith of an oral license the same will be enforced and protected. Town of Newcastle v. Lake Erie, etc., R. Co., 155 Ind. 18, 26, and cases cited; Roush v. Roush, 154 Ind. 562, 570, and cases cited; Noble v. Sherman, 151 Ind. 573, 574, and cases cited; Noftsger v. Barkdoll, 148 Ind. 531, 534, 535; Buck v. Foster, 147 Ind. 530, 532, 62 Am. St. 427, and cases cited; Joseph v. Wild, 146 Ind. 249, 253, 254, and cases cited; Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152; Simons v. Morehouse, 88 Ind. 391; Ross v. Thompson, 78 Ind. 90; Hodgson v. Jeffries, 52 Ind. 334; Miller v. State, 39 Ind. 267;
The special finding’s show that by his former action appellant sought to recover and did recover as a part of his damages the entire cost of constructing said tile ditch. This cost or expense was the only thing that gave appellant the right to enforce the oral license. Having brought an action and recovered the thing which gave him the right to insist upon the easement, he can not thereafter be heard to say that he is entitled to the same. Said cause having been tried, and the damages assessed, and the judgment rendered upon the theory that the license had been revoked, appellant is estopped from saying, in this action, that the license is not revocable, .and that the easement on appellees’ real estate still exists. This is true even if appellees could not have revoked said license by placing appellant in statu quo — a question we do not decide — because, if appellees attempted to revoke the same, and appellant recovered damages upon the theory that the license was revoked, it must be treated as revoked, and neither party can, in this action, question such revocation, or the right to make it. The special finding shows that the former case was tried by the parties and the court and judgment rendered upon the theory that appellant was entitled to recover, if at all, damages for the loss of the easement. The judgment rendered was, therefore, while in force, inconsistent with a demand for an order to compel appellees in this case to permit appellant to continue the enjoyment of said easement, or the specific performance of said oral license.
This suit is against the husband and wife, the land and the easement and the disturbance being the same as in the former case, which was against the husband alone. The adjudication in the former action concludes the appellant and the appellee George W. Broe in this action, although Broe’s wife was not a party to said former action. Board,
There was an attempt in this case to bring the evidence into the record under §6 of the act of 1899 (Acts 1899, p. 381, §1175 Burns 1901, §1108b Horner 1901), which section was held unconstitutional and void by this court in Adams v. State, 156 Ind. 596. It has been uniformly held by this court, however, that where all the requirements of the act of 1897 (Acts 1897, p. 211, §638a Burns 1901, ,§650a Horner 1901) have been complied with, that the evidence is properly in the record, although the attempt has been made to bring the same into the record under said void §6 of the act of 1899, supra. Adams v. State, supra; Miller v. Coulter, 156 Ind. 290, 294; Tombaugh v. Grogg, 156 Ind. 355, 358; Klein v. State, 157 Ind. 146, 150; Beall v. Union Traction Co., 157 Ind. 209, 210; Allen v. Hamilton, 157 Ind. 621, 622. The record in this case shows that the motion for a new trial was overruled and final .judgment rendered on Hovember 13, 1899, and that sixty days were given in which to file a bill of exceptions; that the judge of the trial court, before whom the cause was tried, signed a bill of exceptions containing the evidence on December 22, 1899, and that the same was filed on the next day, December 23, 1899, in the -office of the clerk of said trial court; that said original bill of exceptions is embraced in the transcript in this case, and is duly certified by the clerk of the trial court to be the original instrument containing the evidence in said cause, signed by the trial judge. This is a substantial compliance with
During the progress of the trial, the court refused to permit appellant to prove by two of the jurors at the former trial that the jury only took into consideration and allowed damages for the rental value of that part of appellant’s land which he lost the use of on account of the obstruction of the tile ditch, and for the expense of repairing the tile ditch, which amounted in all to $181, and that nothing was allowed appellant in the verdict for the expense of constructing the tile ditch. This ruling of the trial court was assigned as a cause for a new trial.
The evidence in this cause clearly shows that the former case was tried by the parties and the court upon the theory that the oral license had been revoked by the acts of appellee in obstructing said tile ditch, and that appellant was entitled tc recover, as a part of his damages, the entire cost of constructing said tile ditch, and the court so instructed the jury. It must be held, therefore, the jury having returned a verdict in said former action in favor of appellant, that they included in the damages assessed the expense incurred by appellant in constructing said tile ditch. The evidence excluded was, in effect, that the jurors who had tried the former cause had disregarded the evidence, the instructions of the court, and the theory upon which the case was tried by the parties and the court,— that they were guilty of misconduct. Such evidence would.
It is next insisted that the evidence shows that fraud was practiced on the court in entering judgment in the former action, and that for this reason the same is not res judicata of the subject-matter, or an estoppel; citing Ice v. State, ex rel., 123 Ind. 590; Ereeman, Judgments (4th ed.)„ §250. The rule established by the authorities cited is that, when one procures proceedings to be commenced against himself, and controls both the prosecution and the defense of the case, the judgment rendered is not valid, and will not bar another action in favor of the parties whose names he used, but who in fact had no knowledge or control of
Judgment affirmed.
