Baltimore & Ohio Southwestern Railroad Company v. Quillen
| Decision Date | 16 December 1904 |
| Docket Number | 4,980 |
| Citation | 72 N.E. 661,34 Ind.App. 330 |
| Court | Indiana Appellate Court |
| Parties | BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY ET AL. v. QUILLEN |
From Daviess Circuit Court; Clinton K. Tharp, Special Judge.
Action by Grace Quillen against the Baltimore & Ohio Southwestern Railroad Company and others. From a judgment for plaintiff, defendants appeal.
Reversed.
W. R Gardiner, C. G. Gardiner, T. D. Slimp and Edward Barton, for appellants.
William A. Cullop, George W. Shaw, Arnold J. Padjett and Alvin Padjett, for appellee.
This action was commenced in the Knox, and on change of venue was tried in the Daviess Circuit Court. There were two trials. Upon the first the jury disagreed; upon the second they gave a verdict in favor of appellee against all of the appellants for $ 1,185.
The complaint is in two paragraphs. The material allegations of the first are that plaintiff is the owner of about two hundred acres of rich and valuable land for farming and residence purposes in location 132 in Steen township, Knox county, Indiana; that prior to the grievances complained of said land was high and free from ponds, pools, etc.; that rainfall and surface-waters and natural streams flowed from instead of upon, said land; that during the months of May and June, 1900, the defendants were engaged in building a railroad, and in doing so made excavations and fills on, along and across her land, and thereby covered two acres of the same with waste, and destroyed the same, and that said two acres were of the value of $ 40 each; that "defendants * * * wrongfully made fills and cut ditches so as to prevent water flowing therefrom, and to lead surface-waters and natural streams, which prior thereto flowed away, to flow thereon, and to create pools of standing water, without means of escape, on her said land, and thereby and on account thereof to destroy by said means forty acres of her said land;" that said forty acres were, prior to said grievances, worth $ 40 per acre, but because of said grievances are now wholly worthless; and because of the wrongs of said defendant she has been damaged $ 1,000.
The second paragraph alleges, in substance, that the plaintiff is, and has been for five years, the owner of 200 acres of land in location 132 in Steen township, Knox county, Indiana, lying along defendants' railroad track; that defendants were about to change the position, location and grade of said railroad track, and, in doing so, placed on two acres of said land barren clay, which has destroyed the fertility of said two acres, and made it useless; that defendants have cut ditches and made embankments which will and have run onto forty acres of land large quantities of water, which, on account of natural drainage, would run away from said land, and have and will thereby create large standing pools, which will and have become stagnant, give off odors, create a nuisance, and will and have destroyed forty acres of her land; that she has been damaged thereby in the sum of $ 1,900.
A demurrer for want of facts to each paragraph was overruled. Defendant filed an amended answer in three paragraphs, the first being a general denial. The second paragraph gives the date (1857) of the construction of the Ohio & Mississippi Railroad to the ownership of which the defendant the Baltimore & Ohio Southwestern succeeded; recites the source of title of its right of way; avers facts to the effect that the acts, of which plaintiff complains, were necessary in the operation and maintenance of its said road, and were done in an orderly and careful manner, all of which were done by the defendants, Waddle & Fitch, as contractors with said railroad company. The third paragraph is the same as the second, except that it gives a different source of title. A separate and several demurrer for want of facts to each of said second and third paragraphs of answer was sustained. The cause was tried upon the issues joined on the complaint and general denial.
The appellants, the Baltimore & Ohio Southwestern and Waddle & Fitch, each assigned as errors the action of the court in overruling the demurrer of said appellants to the first and second paragraphs of the amended complaint, respectively, and in overruling the motions for a new trial.
As to the first paragraph of the complaint, the position of appellants is, that while it proceeds upon the theory that appellants were engaged in the construction of a railroad over appellee's land and by so doing created a nuisance thereon causing consequential damages thereto, yet it contains no averment of facts to justify the conclusion that the appellant railroad company had not, by proper proceeding, acquired the right to construct the railroad, or that the construction was wrongful; that it contains no averment that the appellee had not been fully compensated for consequential damages; that the averments show that the alleged nuisance might be abated and, as a consequence, the value of the land restored; that there is no averment of a threat or purpose on the part of appellant to continue the conditions described, or of any damage other than the entire destruction of the value of part of the lands of the appellee; that there is no description of the lands alleged to have been rendered of no value.
1. Without separately taking up each of these objections, we think the paragraph is sufficient upon the ground that it charges that appellants "wrongfully made fills and cut ditches so as to prevent water flowing therefrom, and to lead surface-water and natural streams, which prior thereto flowed away, to flow thereon, and to create pools of standing water, without means of escape on her said land, and thereby and on account thereof to destroy by said means forty acres of her said land, * * * thereby creating a permanent nuisance. The acts charged are properly characterized as tortious injury to appellee's real estate, and not negligence. In the face of the averment that the acts complained of were wrongful, there could be no presumption that appellant had by proper proceeding acquired the right to commit the acts of which appellee complains, nor would the presumption arise that consequential damages had been fully compensated. The appellant railroad company would have no right to collect surplus water on its right of way, and discharge it in a body on the lands of appellee, to her injury. If the right of way had been properly acquired, plaintiff's right to be compensated for damages from water thereafter collected and discharged upon her land would not be affected. Such damages are not included in the price paid for the right of way. Egbert v. Lake Shore, etc., R. Co. (1892), 6 Ind.App. 350, 33 N.E. 659; Stodghill v. Chicago, etc., R. Co. (1876), 43 Iowa 26, 22 Am. Rep. 211; Hunt v. Iowa Cent. R. Co. (1892), 86 Iowa 15, 52 N.W. 668, 41 Am. St. 473; Louisville, etc., R. Co. v. Hays (1883), 11 Lea 382, 47 Am. Rep. 291; White v. Chicago, etc., R. Co. (1889), 122 Ind. 317, 7 L. R. A. 257, 23 N.E. 782.
2. Conceding that the averments show that the alleged nuisance might be abated, and that there is no threat or purpose on the part of appellants to continue the conditions described, these are facts going to the measure of damages appellee would be entitled to recover for injuries already sustained.
3. The land is sufficiently described to withstand a demurrer. Shipler v. Isenhower (1866), 27 Ind. 36.
During the trial appellee's title seems not to have been questioned. It is agreed by the parties, as appears of record, that the plaintiff holds her title to the real estate described in the complaint as a remote grantor from the same party from which the defendant the Baltimore & Ohio Southwestern Railroad Company holds its title to the right of way. In the absence of a motion for a more particular description, and with the foregoing agreement, it is too late to question the sufficiency of the description. What we have said applies to both paragraphs of the complaint. The theory of each is that the injury to the plaintiff's land was caused by the deposit of barren and waste earth upon appellee's land and the collecting and discharge of surface-water by means of ditches dug by the defendants. In each paragraph it is alleged that the railroad company is a corporation duly organized and existing by virtue of the laws of the State of Indiana, and that the defendants Waddle and Fitch are partners doing business under the name and style of Waddle & Fitch, and all of said defendants are engaged in committing the wrongs complained of.
4. The purport of the second and third...
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