46 Ind. App. 295 | Ind. Ct. App. | 1910
This action was brought to recover damages for the overflowing of appellee’s land, caused" by the improper
It is charged in appellee’s complaint, upon which a right to recover damages -is predicated, that appellant company, in the reconstruction of its roadbed on its right of way through appellee’s land, wrongfully obstructed the natural 'watercourses passing through and draining’ the land, and negligently failed to make adequate provision for the flow and escape of water in said watercourses in wet sea'sons, and during rains and at the time of freshets, and thereby negligently prevented the water in said watercourses from escaping from appellee’s land, thus depriving appellee of its free use and enjoyment, and injuring and damaging -said land; that since June, 1906, by the action of said appellant complained of, the water has been caused to stand on appellee’s land, destroying his crops and permanently damaging his land.
There was also evidence tending to show that the bottom of said forty-eight-ineh pipe was two feet lower than the bottom of said open ditch, and five feet lower than the surface of appellee’s adjoining land, tending to show that a ditch dug on appellant company’s land, making connection between said pipe and said open ditch, would effectually drain appellee’s land and abate the alleged nuisance. In this condition of the evidence, said appellant offered to prove by competent witnesses that such ditch could be constructed by appellee on his own premises, at an expense of $5 or $10. This offer was, over the objection and exception of appellant, refused by the court. This was error. The evidence was clearly admissible.'
For these errors, the judgment of the court below is reversed, and a new trial ordered.