Barnard v. Sherley

• Decision Date: 06 June 1893
• Docket Number: 16,187
• Citation: 34 N.E. 600,135 Ind. 547
• Parties: Barnard et al. v. Sherley
• Court: Indiana Supreme Court

34 N.E. 600

135 Ind. 547

Barnard et al. v. Sherley

No. 16,187

Supreme Court of Indiana

June 6, 1893

Reported at: 135 Ind. 547 at 568.

From the Morgan Circuit Court.

The judgment is reversed, with instructions to overrule the demurrer to the second paragraph of the answer, and for further proceedings not inconsistent with this opinion.

J. H Jordan, O. Matthews and W. R. Harrison, for appellants.

W. S Sherley, J. V. Mitchell and M. H. Parks, for appellee.

OPINION

Howard, J.

Since May, 1886, the appellee has been the owner of certain lots and lands, in and adjoining the city of Martinsville occupied by her as a farm. Appellants are the owners of certain lots in the city of Martinsville, adjoining the lands of appellee. During the years 1887 and 1888 a well was drilled upon appellant's lots to the depth of 800 feet, in search of gas. Instead of gas a large volume of water flowed from the well, and has so continued to flow ever since. The water having been found, by analysis, to possess curative properties for certain diseases, appellants erected a bath house upon their said lots, to be used for bathing persons afflicted with diseases, who might be benefited by the artesian waters.

On the 16th day of September, 1889, the appellee filed her complaint against the appellants, in the Morgan Circuit Court, alleging that appellants, after using said artesian water in bathing the bodies of diseased persons, the same having all manner of diseases, including syphilitic, and after said water had become befouled and polluted thereby, cause the same to be conveyed in a tile ditch under ground, constructed by them, to the lands of appellee, causing such water to flow upon and over the lands of appellee and into a natural stream of water running thereon, causing said natural stream of water to become befouled and polluted thereby, exposing the same to the stock pasturing and feeding upon appellee's said land, where said stock is accustomed to run, feed and pasture, such as milch cows, horses and hogs, and the same drinking said water in its befouled and polluted condition, as aforesaid; that said stream of water is a small spring branch of pure water, having its source in springs about one mile from appellee's land, and confined in a small channel upon appellee's land, and passing through appellee's land the distance of fifty-three rods, and having no outlet, but sinking into the lands of appellee, and others below; that said artesian water in its polluted condition, so caused by appellants as aforesaid, and so caused to flow upon appellee's land, accumulates in great ponds of water upon appellee's said premises, becoming polluted and stagnant thereon, to the great and irreparable damage of appellee and her said land, and to the stock pasturing and feeding thereon, also endangering the health of persons living upon said land and drinking the milk from said cows; that said mineral water, from said artesian well, never at any time flowed upon appellee's land and into said stream of water, by percolation or otherwise, until the same was caused to flow thereon and therein by appellants, in manner as aforesaid. Concluding with a demand for damages in the sum of $ 1,000, and praying that appellants be forever enjoined from causing and permitting said water, from said well, to run upon and flow over the lands of appellee, and into said stream of water, and for other proper relief.

A demurrer having been overruled to this complaint, appellants answered by general denial, and also by special plea. There was a motion to strike out parts of the special answer, which motion was sustained. A demurrer was afterwards filed to the second paragraph of the answer, which was sustained. Appellants moved for a jury to try the cause, and also moved for a jury to answer questions of fact, both of which motions were overruled. To all of these rulings appellants duly excepted.

The cause was submitted to the court, and the court, having heard the evidence, found for the appellee, assessing her damages in the sum of fifty dollars, and appellants were "enjoined from causing or permitting the water of the artesian well, which shall have been used at their sanitarium and bath house * * * in bathing or washing persons afflicted with syphilis or other infectious ailment or disorder, to flow into said branch or stream * * * or over and upon the lands of plaintiff; * * and are further enjoined and restrained from polluting or corrupting the water from said well, which may be left by them to flow into said branch and stream, in such manner that the water of said branch and stream other than that flowing from said well, may be rendered dangerous or injurious to live stock."

A motion for a new trial was overruled.

Various errors are assigned and discussed, but the controlling questions in the case arise under the ruling of the court in sustaining the demurrer to the second paragraph of the answer. This paragraph of answer, omitting the parts stricken out as not material, or as being such as might have admitted of proof under the general denial, is as follows: "For further answer, they (appellants) say that the stream of natural water set forth in plaintiff's complaint is a small stream and branch which flows from sources northeast of the city of Martinsville, thence southward to near the center, north and south, of said city, thence westward across said city, thence south to and across plaintiff's said land, and has so flowed for many years prior to plaintiff's having any interest in said land; that the said well from which said waters flow upon the said lots of defendants was dug and bored and the flow thereof caused by an association of many citizens of said city of Martinsville, with the assent and approval of plaintiff; that the only means or way of escape of said water is in and along said branch over the said lands of plaintiff; that for more than one year after the said well was so dug and bored, the waters therefrom flowed from defendants' said lots into said branch by open ditches, and were so caused to flow by the said association of persons, who dug and bored the (same), and without objection by plaintiff, and with her acquiescence; that thereupon and thereafter, upon testing said waters by scientific analysis, by drinking and using the same in baths, they were found to be of great value, and to have highly curative properties, and to be of great service and value in healing persons afflicted with various disorders, rheumatism, neuralgia, kidney affections, paralysis and many other disorders.

"Whereupon defendants erected a bath house to utilize said waters for the benefit of all persons so afflicted, upon their said lots at a cost of ten thousand dollars, and have treated, benefited, and cured hundreds of persons from all parts of the country so afflicted as aforesaid, and are still engaged at their said bath house in healing and curing such sick and afflicted; that in erecting said bath house and in using said waters of said artesian well for the healing of persons as aforesaid, and in all defendants did in the use of said waters and the draining of the same away, as complained by said plaintiff, said defendants used all proper and possible care to avoid injury, damage or inconvenience to said plaintiff and all others, and only did such acts as were proper and necessary to be done in the use of said waters for the purposes aforesaid; that said plaintiff stood by and assented to and acquiesced in the said expenditure of said sum in the erection of said bath house by defendants; that after so erecting said bath house defendants placed under ground a drain, made of porous tile, to convey the surplus water from said artesian well under ground to the branch above plaintiff's land, because the said branch was the only natural and only convenient outlet for said water, and did not thereby materially increase the flow of water in said branch."

The question presented for decision is new in this State: Whether one who sinks an artesian well upon his own land, and uses the water to bathe the patients in a sanitarium or hospital erected by him on said premises, is liable to injunction and damages for allowing the water to flow into a stream which is the natural watercourse of the basin in which the artesian well is situated, the owner being free from negligence or malice and using all due care in avoiding injury to his neighbor.

In a Pennsylvania case the plaintiff was the owner of property on one side of a street, and brought an action for damages for alleged injury to his property by the defendant company, who had constructed its elevated road, on its own land, on the other side of the street. It was alleged that the noise, dust, smoke, and cinders, and the constant jar of passing trains interfered with plaintiff's enjoyment of his property and lessened its value.

The court in that case premised that under the constitution of Pennsylvania the company would only be liable if, under the same circumstances, an individual would be liable at common law; and held that in case a natural person were operating the road under the same circumstances he would not be responsible in damages, for the reason that he would have a right to the reasonable use and enjoyment of his property, and if in such use, without negligence or malice on his part, a loss should unavoidably fall upon his neighbor he would not be liable therefor.

No principle of law is better settled than that a man has the right to the lawful use and enjoyment of his own property and that if, in the enjoyment of such right, without negligence or malice, an inconvenience or loss occurs to his neighbor, it is a wrong for which there is no liability. This must be so or every man would be at...