29 Ind. 110 | Ind. | 1867
The appellees were indicted in the court . below for malicious trespass, in cutting the embankment of Splunge Creek Reservoir, in Clay county, a part of. the Wabash and Erie Canal. The defendants were acquitted, under a plea of not guilty. The ease is brought here by the State, on questions of law reserved, at the trial.
A witness was permitted, on the trial, over the objection of the prosecuting attorney, to testify that the defendants lived near the reservoir and within the distance where sickness was created by it; that the Wabash and Erie Canal, from Terre Haute to the south part of Clay county, had
By instructions given and by instructions refused, the question is presented by the record, whether'this evidence was proper for the purpose of rebutting the malicious or mischievous intent. "We recognize fully the rights of the trustees of the Wabash and Erie Canal, as held by this court in Butler et al. v. The State, 6 Ind. 165. The evidence only went to the question of the intent with which the act complained of was done. The trustees have the right to the easement for the purposes of navigation and to furnish hydraulic power. Edgerton et al. v. Huff, 26 Ind. 35. And although the non-user may not divest them of this right, it is difficult to see what damage the act complained of could be to them under the evidence. Indeed, the witness who speaks to the damage, in making his estimate, includes the right to fish. If the reservoir had ceased to be of any value as a feeder to the canal for purposes qf navigation and hydraulic power, the owners could not complain of an injury to a right not vested in them. ¥e think the evidence was properly admitted, and that the court committed no error in giving or refusing instructions.
The judgment is affirmed, with costs.