41 Ind. App. 565 | Ind. Ct. App. | 1908
The questions properly presented and argued are, error in stating the conclusion of law and in overruling the motion for a new trial.
Pacts found by the court are to the effect that appellees own the north half of block twenty-seven in said town; that Keller avenue runs north and south along the west side of said block, Sycamore street runs east and west along the north side, and Lain street runs north and south along the east side of said property, Keller avenue intersecting Sycamore street at the northwest corner of said property, and Lain street intersecting Sycamore street at the northeast corner of said property; that appellees’ said property is lower than the lots to the south of it, and likewise lower than the lots west of it; that for eighty rods to the south of appellees’ property there is a continuous rise in the ground; that there is a gutter on the west side of Lain
Counsel for appellant contend that this is a case where appellees, under the authorities, cannot recover, and that where a street is improved and the grade is raised, leaving property below the street level, such property owners cannot recover for the. damming of the surface-waters. But this is not such a case. In this case waters that caused the injury were waters that were collected in a channel along appellant’s street, and by reason of appellant’s obstruction in the channel the same was caused to flow upon appellees’ land. In such a .case the town is liable. 2 Dillon, Mun.
The only question presented upon the ruling on the motion for a new trial is that the evidence is insufficient to sustain the finding, and the only deficiency in the evidence pointed out is that there was no evidence that the city constructed the drains. As we have heretofore determined, this is immaterial.
It is also contended there is no evidence showing that the improvement of the street was negligently done. There is no virtue in this contention. The evidence shows that by the grading of the street the water collected on Lain street and Keller avenue, and flowing down the same to Sycamore street, was there obstructed by such grading, -and its onward course stopped on account of insufficient outlet, and it was thereby backed upon appellees’ property. This shows negligent and unskilful construction.
Judgment affirmed.