Seigmund v. Williams, 55 Ind. App. 498

Seigmund v. Williams

55 Ind. App. 498 | Ind. Ct. App. | 1914

Hottel, J.

This is an appeal from a judgment in appellee’s favor in an action brought by appellant to recover damages from appellee for collecting water on his lands by means of tile drains and casting it onto appellant’s lands, and to enjoin the continued use of such drains.

The case is, in all its essential features, except as hereinafter indicated, identical with that of Seigmund v. Tyner (1913), 52 Ind. App. 581, 101 N. E. 20. The appellant is the same person, and appellee insists that the instant case “not only involves the same rules of law but, that the grievances complained of happen to be on the identical forty acre tract Of land as in the Seigmund v. Tyner case. ’ ’ The issues of law and fact presented by the pleadings in the two eases are identical and their merits are controlled by the same general principles of law; but the present case differs from the former in that in it the facts to which such general principles must be applied are specially found by the trial court, and the finding is such that a determination of the question presented by the error assigned, which challenges the correctness of the conclusion of law stated thereon, eliminates all questions presented by the rulings on the pleadings about which there is any serious contention.

*5001. *499The finding of facts is too lengthy to set out in this opinion, and we deem it sufficient to say that the facts so found *500are even more favorable to appellee than those set out as the undisputed facts in the case of Seigmund v. Tyner, supra. In addition to finding practically the same facts, set out as undisputed, in that case, the court in the present ease found the specific facts with reference to the purpose, time and place of location of said tile drains in question, viz., that said drains were located by appellee’s remote grantors, while they owned his lands; some of said drains having been located in 1878- for drainage purposes, others having been put in “in 1887, and more than twenty years before the commencement of this suit * * * in the sole interest of good husbandry and because such remote grantor claimed the right to do so”, and others, at other remote periods, more than twenty years prior to the bringing of this suit, were put in to render such land tillable and to prevent the water from flowing over its surface and causing it to wash; that such drains were each and all located in the bottom of natural depressions in such lands, some of which, in places, had well defined banks and said tile drains carried no water that would not naturally have flowed through such natural depressions; that such tile drains carry said water into the one or the other of three culverts put across the public highway for its protection at points where the water falling on said drained lands had found its outlet from time immemorial and where such water from necessity had to flow; that after the water from all of the drains and from the Tyner land flows through the stone culvert it flows in a low depression across plaintiff’s land and empties into Ross Run; that said tile drains do not carry any water onto plaintiff’s land which does not naturally flow onto plaintiff’s land at the same point where it now flows nor do they increase the volume of water discharged upon plaintiff’s land in any given time nor do they bring down onto plaintiff’s land any greater quantities in any given time and the water has had no effect upon plaintiff’s land on account of the construction of said tile *501drains, neither has the construction of said tile drains caused any damage to plaintiff’s crops or any washing to plaintiff’s land or any damage whatever to plaintiff’s land; that the water conducted by said tile drain would naturally flow in the same direction and in the same volume if said tile drain had not been constructed and the construction of said tile drain has in no way injured the crops of the plaintiff or caused his land to wash or caused his land to be damaged in any way whatever; that all of said tile drains described in these findings do not put any greater quantity of water on the plaintiff’s land than always flowed there and do not now, and never have, discharged said water upon plaintiff’s land with any greater velocity than it has always been discharged upon said land and has not caused plaintiff’s land to wash and has not washed away any crops on plaintiff’s land and has not damaged plaintiff’s land in any way whatever.

We think it must be evident from the facts which we have indicated as found by the trial court that under the holding of this court in the ease of Seigmund v. Tyner, supra, the conclusion of law as stated by the trial court was correct. Indeed, we think all the authorities including those cited by appellant support such conclusion. Mitchell v. Bain (1895), 142 Ind. 604, 617, 42 N. E. 230; Weddell v. Hapner (1890), 124 Ind. 315, 24 N. E. 368; Templeton v. Voshloe (1880), 72 Ind. 134, 37 Am. Rep. 150; Weis v. City of Madison (1881), 75 Ind. 241, 256, 39 Am. Rep. 135; Cairo, etc., R. Co. v. Stevens (1881), 73 Ind. 278, 38 Am. Rep. 139; Vannest v. Fleming (1890), 79 Iowa 638, 44 N. W. 906, 8 L. R. A. 277, 18 Am. St. 387; Wharton v. Stevens (1891), 84 Iowa 107, 50 N. W. 562, 15 L. R. A. 630, 635, 35 Am. St. 296.

2. *5023. *501We have also indicated that this finding of facts eliminates all questions’ presented by the rulings on demurrers to the answers. We think this must be evident because the facts, above indicated as found, show *502that the appellant failed to prove his cause of action. Appellant raises some question as to the sufficiency of the evidence to sustain the decision of the trial court, hut an examination of the evidence set out in appellant’s brief convinces us that there was some evidence to support each of the material facts found by the court. We find no available error in the record. Judgment affirmed.

Note.—Reported in 104 N. E. 49. As to the discharging of surface water upon a neighbor’s land, see 85 Am. St. 730. See, also, under (1) 40 Cyc. 645, 648; (2) 3 Cyc. 385; 31 Cyc. 358; (3) 3 Cyc. 360.