185 Ind. 35 | Ind. | 1916
— Appellant is the owner of a certain dam and hydraulic generating plant constructed under the authority of §5081 Burns 1914, Ads 1907 p. 280, at the town of Williams, in Lawrence county. The dam is located in and across White river, a permanent stream or water course at that point, and by its construction the water in said stream was set back- and caused to overflow a part of appellee’s lands. To. appropriate the lands so overflowed and to assess the damages sustained by appellee through such appropriation is the purpose of this action. In prosecuting this appeal from a verdict and judgment fixing said damages, appellant alleges error of the court below in overruling its motion for a new trial and challenges specifically the admission and rejection of certain evidence and the refusal to give certain instructions requested by it.
The other questions presented will probably not arise on a second trial and it is unnecessary here to consider them. Judgment reversed, with instructions to sustain appellant’s motion for a new trial and for further proceedings not inconsistent herewith.
Note. — Reported in 111 N. E. 925. See 85 Am. St. 302; Ann. Cas. 1913A 1361.