Baltimore & O. S.W.R. Co. v. Quillen

• Decision Date: 16 December 1904
• Docket Number: No. 4,980.,4,980.
• Citation: Baltimore & O. S.W.R. Co. v. Quillen, 34 Ind.App. 330, 72 N.E. 661 (Ind. App. 1904)
• Parties: BALTIMORE & O. S. W. R. CO. et al. v. QUILLEN.
• Court: Indiana Appellate Court

34 Ind.App. 330

72 N.E. 661

BALTIMORE & O. S. W. R. CO. et al.

v.QUILLEN.

No. 4,980.

Appellate Court of Indiana.

Dec. 16, 1904.

Appeal from Circuit Court, Daviess County; C. K. Thorp, Special Judge.

Action by Grace Quillen against the Baltimore & Ohio Southwestern Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed.Gardiner & Slimp, W. R. Gardiner, and Edward Barton, for appellants. Cullop & Shaw and Padgett & Padgett, for appellee.

COMSTOCK, C. J.

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 appellants for $1,185. The complaint is in two paragraphs. The material allegations of the first are that plaintiff is the owner of about 200 acres of rich and valuable land for farming and residence purposes in location 132 in Steen township, Knox county, Ind.; 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 from 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 40 acres of her said land; that said 40 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, Ind., lying along defendants' railroad track; that defendants were about to change the position, location, and grade of said railroad track, and in doing so have placed on two acres of said land barren clay, which has destroyed the fertility of said 2 acres, and made it useless; that defendants have cut ditches and made embankments which will and have run onto 40 acres of the land large quantities of water, which, on account of natural drainage, would run away from said land; and has and will thereby create large pools of standing water, which will and have become stagnant, give off odors, create a nuisance, and will and have destroyed 40 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. Defendants filed an amended answer in three paragraphs, the first being a general denial. The second paragraph gives the date (1857) of the construction of 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, were done in an orderly and careful manner, all of which was done by the defendants Waddle and 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 the said second and third paragraphs of answer was sustained. The cause was tried upon the issues joined on the complaint and general denial. The appellant the Baltimore & Ohio Southwestern and the appellants Waddle and 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 appellant is that while it proceeds upon the theory that appellants were engaged in the construction of a railroad over appellee's land, it created a nuisance thereon, causing consequential damages thereto, but that 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 consequential damages had not been fully compensated to the appellee; 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 appellee; that there is no description of the lands alleged rendered of no value. Without separately taking up each of these objections, we think the paragraph is sufficient upon the ground that it charges that appellant “wrongfully made fills and cut ditches so as to prevent water from flowing from, and caused surface water and natural streams which prior thereto flowed away to flow thereon, and created pools of standing water without means of escape, on appellee's land, and thereby and on account thereof destroyed forty acres of her land, and thereby created 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 the consequential damages had been fully compensated. The appellant 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 for 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 R. R. Co., 6 Ind. App. 350, 33 N. E. 659;Stodghill v. Chicago, etc., R. R. Co., 43 Iowa, 26, 22 Am. Rep. 210;Hunt v. Iowa Central, etc., 86 Iowa, 15, 52 N. W. 668, 41 Am. St. Rep. 473;Louisville, etc., R. R. Co. v. Hayes (Tenn.) 47 Am. Rep. 291;White v. Chicago, etc., R. R. Co., 122 Ind. 317, 23 N. E. 782, 7 L. R. A. 257. 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 receive for injuries already sustained. The land is sufficiently described to withstand a demurrer. Shipler v. Isenhower, 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...