Lane v. Miller

• Decision Date: 26 November 1861
• Parties: Lane v. Miller and Others
• Court: Indiana Supreme Court

17 Ind. 58

Lane v. Miller and Others

Supreme Court of Indiana

November 26, 1861

APPEAL from the Orange Circuit Court.

The judgment is reversed, with costs. Cause remanded.

R Crawford, for the appellant.

J & A. B. Collins, for the appellees.

OPINION

Worden J.

Suit by Lane, against the appellees, to recover damages for maintaining a mill-dam, and backing water upon the lands of the plaintiff.

Issue, trial, verdict and judgment for the defendants.

On the trial, the defendants offered, and gave in evidence, in order to establish a right to overflow the plaintiff's land, the record of certain proceedings upon a writ of ad quod damnum, had in the same Court, upon the petition of Joseph Roberts and Martin Rigney, under whom the defendants claim.

Roberts and Rigney, who owned the mill-site, proceeded, by way of ad quod damnum, to condemn the lands above the proposed dam, which, it was apprehended, would be affected thereby. The petition for the writ did not name any of the proprietors whose lands, it was supposed, would be affected by the dam. William Cathcart, and the heirs of William Wolfington, from whom the plaintiff derives title, were then the owners of the land now alleged to be overflown. The inquest returned by the jury sets out, that they had examined the lands above and below the point of the proposed dam, which probably might be overflowed or injured, and names several persons whose lands might be affected; but does not name Cathcart nor Wolfington, nor does it describe any lands which would probably be affected. Notice was given to such persons, only, as were named in the inquest. They not appearing, the inquest was confirmed, and leave given to erect the dam, to the height of eight feet above low water mark. The persons owning the land, for the overflowing of which this suit was brought, were not named in the proceedings, nor were the lands mentioned or described.

The plaintiff objected to the introduction of this record, on the ground that the then owners of the land were not parties thereto, and were not notified, &c. The objection was overruled, and exception taken.

The Court instructed the jury that, "The owners who would probably be injured, were bound to be named (in the inquest); those who would not probably be injured were not bound to be named: and, I think the fair construction is, that this plaintiff, or the former owners of the land, were not named, because, in the opinion of the jury, they would not probably be injured by such a dam as they describe in the inquest. The ad quod damnum is, therefore, properly before you, to show that the defendant had a right to build such a dam as the judgment of the Court describes; but if you find, on the proof, that Lane, or his grantors, had no notice of the proceedings, then the claim of the plaintiff, in this suit, would not be barred by such proceeding. The Revised Statutes require that notice of the inquest should be given, in writing, to all the persons named therein as affected; other persons, not named therein, are bound, if they, in any manner, have sufficient notice of the proceedings to know what is going on. Whether the notice be written, or verbal, makes no difference." Exception was taken to this charge.

We are of opinion that the record was improperly admitted in evidence, and that the instruction given to the jury was wrong. The general rule is, that none but parties and privies are bound by a judgment. There is nothing in the nature of these proceedings that should take them out of the general rule. On the contrary, the property of one man can be appropriated to the use of another, against the will of the former, only through the exercise of the right of eminent domain, for purposes deemed for the public good, and upon compensation being paid therefor. The validity of a law might well be questioned, which should, by its terms, authorize proceedings by which one man should acquire the right to overflow the lands of another, without, in some way, making the latter a party to such proceedings. The statute of 1843 under which the proceedings in this case were had, does not, as we think, admit of such construction. R. S. 1843, p. 944. By this statute, the jury are required to examine the lands which may probably be overflowed or injured, and say what damage it will be to the several proprietors, naming them; and, thereupon, the sheriff is required to give notice, in writing, to such proprietors, to show cause why the person applying should not have leave to build his dam. It seems to us clear, that the person applying for leave to build a dam, acquires the right to do so as against those only whose lands the jury find will probably be affected, and who are notified, as provided for by the statute. Vide Honenstine v. Vaughan et al., 7 Blackf. 520. The jury, as was said in the charge of the Court, are not required to name those whose lands will not probably be injured by the erection of the proposed dam; but...