172 Ind. 493 | Ind. | 1909
On October 14, 1903, Jacob Keyser and other landowners petitioned the Marshall Circuit Court 'to establish a certain proposed public ditch for the purpose of draining their lands and the lands of others, to the amount of some fifty thousand acres, situated in Marshall county, Indiana. The proceedings were instituted under the statute of
Various other grounds of remonstrance are set forth. The petitioners filed a demurrer to each paragraph of the remonstrance and to each specification thereof. This demurrer was overruled, and they replied by a general denial. Upon the issues joined there was a trial by the court, and a finding in favor of the petitioners that the proposed work be estab
Percy J. Troyer was appointed by the court as construction commissioner, and gave bond accordingly.
In this appeal appellant has assigned as errors: (1) The insufficiency of the petition to constitute a cause of action; (2) that the court had no jurisdiction of the subject-matter; (3) that the court erred in overruling her motion for a new trial. Other assignments are made, which need not be noted.
Appellant contends that she had, as shown by her answer or remonstrance, acquired through her remote grantors the right to maintain the dam in question across Yellow river, as granted under the ad quod damnum proceedings set out in her remonstrance. The record in the ad quod damnum proceedings was introduced in evidence by appellant in support of her remonstrance. This record discloses that Austin Puller, in the year 1852, instituted said proceedings by filing in
Appellant contends that the right of said Austin Fuller, his heirs*and assigns, to maintain the mill-dam and millpond for said purpose became and was a vested right in them, for the uses and purposes therein set forth, and that such right became and was vested in her as the successor of said Austin Fuller in the ownership and proprietorship in such real estate and mill property, and that such rights have ever since been exercised and enjoyed by said Fuller and his several grantees, including appellant.
Summarizing the evidence upon some of the material
There is much evidence to show that the work will be of-great public utility and benefit, and improve the health of the community. The dam in controversy very much impedes and obstructs the flow of the water. As it now stands, it is two hundred feet wide and six feet, four inches high. The mill appears originally to have been constructed some time prior to the year 1852, and was operated as a toll-mill at the time the ad quod damnum proceedings were instituted. At the time appellant’s husband purchased this mill it was a three-story building and was operated by steam. At that time its capacity was 100 barrels of flour per day. This mill was destroyed by fire November 6, 1896, and for some time prior to the latter year was operated by steam. After the fire it was rebuilt, and now has a steam-engine attached, and is operated by steam when the water in the river becomes low. It is
In Hankins v. Lawrence (1846), 8 Blackf. 266, this court recognized and sustained the right of the State to extend the power of eminent domain to persons engaged in operating gristmills to secure the lands of others for the construction and maintenance of dams for the operation of their mills. This right appears to have been upheld on the ground that such mills were of public utility. The court in that case said: “Since the commencement of our state government we have always had statutes authorizing the writs of ad quod, damnum. By virtue of such writs persons are enabled to procure the lands of others, if necessary, for the abutment of dams for gristmills, without the owner’s consent, by making compensation. These statutes are supported on the ground of the benefit of such mills to the public.”
In the earlier days of the country, when gristmills were few, both the legislature and the courts recognized them as of public use and benefit. Grain was brought to them by the people of the surrounding country, and was ground into flour and meal for domestic uses. A certain portion of the grain was taken as toll for grinding. As a rule, the owners of these mills were required to serve the public impartially,
We believe but one conclusion can be reached from the evidence in respect to appellant’s mill-dam, and that is that the maintenance thereof in the operation of her mill has ceased to be of public utility. The mill is no longer ‘ ‘ a gristmill, ’ ’ operated for toll, but is run wholly for private use or benefit, doing, as shown, a large, commercial business in the manufacture and sale of flour. Appellant’s right to maintain this dam has certainly ceased to be of public use or advantage. Certainly, as against the State, she cannot successfully assert her right to maintain it for her own private convenience and use, and thereby prevent or retard the construction of the work in question by the method proposed. No doubt the dam is of value to her, for the reason that it enables her at times, when it is necessary, more convenient and cheaper, to shift the motive power from steam to water, and vice versa; but, viewed in any light under the facts, the dam, as it now exists as an attachment to the mill, serves a private use and nothing more, and the State has the right to remove it, if necessary, in the furtherance of the plans and methods for the proposed work, upon the making of just compensation. The following authorities support our holding: Talbot v. Hudson (1860), 16 Gray 417; 2 Farnham, Waters and Water Rights, §182, and authorities cited; 1 Lewis, Eminent Domain (2d ed.), §271; Jessup v. Loucks (1867), 55 Pa. St. 350.
The broad doctrine advanced by appellant, that, her mill having'once been devoted to a public use, and her right to maintain the dam in connection therewith having been acquired under the law of eminent domain, the State can neither remove it nor appropriate it in any manner to an other public use on making proper compensation, is adverse to the following authorities: City of Terre Haute v. Evansville, etc., R. Co. (1897), 149 Ind. 174, 37 L. R. A. 189; Bal
Appellant’s right to maintain the dam, under the ad quod damnum proceedings, and thus cause the waters to flow back over the lands of the riparian owners, is a question not involved in this appeal; but her right, under the facts in this (-ase, to maintain it as an obstruction in the river, and prevent the State from removing it in order successfully to carry out the plan of the proposed improvement, upon the making of just compensation to her, has no support under the law.