56 Ind. App. 171 | Ind. Ct. App. | 1914
Appellant brought this action against appellees to recover damages. Each of the three paragraphs of complaint charged in substance that the plaintiff owned lands in the vicinity of the lands owned by the defendants and that such defendants collected large quantities of water from off their lands and east such water upon the lands of plaintiff, causing the same to become valueless for farming purposes, to plaintiff’s great damage. To the complaint the defendants filed answer in three paragraphs, but we are required only to consider the action of the trial court in overruling plaintiff’s demurrer to the second of these paragraphs. The trial resulted in a general verdict for the defendants, and over a motion for a new trial there was judgment in their favor.
The second paragraph of answer, omitting the formal parts, contains the following averments: ‘ ‘ The lands owned by the plaintiff are naturally low, wet and swampy * * * and no part of said lands has been brought under cultivation until recently. That the said lands owned by the defendants lie west of plaintiff’s said lands and upon a higher level, and that the surface of the country gradually slopes from their lands downward to those of the plaintiff, and that defendants’ lands have been under cultivation for more than forty years last past. That from time immemorial there has existed a natural watercourse leading from the defendants’ said lands eastward, on to and across the said lands of the plaintiff; that said natural watercourse has had for more than thirty years a well defined channel and banks, and that by reason of the lay of the country, the water flowing therein has for said time naturally flowed in said channel away from the defendants’ said lands, on to and across plaintiff’s said lands; that said natural watercourse for more than thirty years has carried the surface water
Error is also assigned in the giving of a number of instructions at the request of appellee.
In support of the answer the evidence shows that appel
There is also evidence to prove that after the construction of the artificial drain the lands of appellant were overflowed, but that such overflow was caused by preventable obstruction in the ditch on appellant’s lands which led from the "Wiley-Moughler ditch to the Streeter ditch. The evidence shows further that appellees and their predecessors in title had made use of such natural watercourse as a means of draining their lands continuously from time immemorial, with the knowledge and acquiescence of appellant and his predecessors in title, and that such easement had been en
Having given this case close consideration we are fully satisfied and convinced that the case was fairly tried below and that all the objections properly presented by appellant must be determined against him. Judgment affirmed.