Bissell Chilled Plow Works v. South Bend Manufacturing Company

• Decision Date: 16 March 1916
• Docket Number: 8,868
• Citation: 111 N.E. 932,64 Ind.App. 1
• Parties: BISSELL CHILLED PLOW WORKS v. SOUTH BEND MANUFACTURING COMPANY ET AL
• Court: Indiana Appellate Court

111 N.E. 932

64 Ind.App. 1

BISSELL CHILLED PLOW WORKS v. SOUTH BEND MANUFACTURING COMPANY ET AL

No. 8,868

Court of Appeals of Indiana

March 16, 1916

Rehearing denied December 22, 1916. Transfer denied March 8 1917.

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Action by the South Bend Manufacturing Company and another against the Bissell Chilled Plow Works. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Stuart MacKibbin and Anderson, Parker, Crabill & Crumpacker, for appellant.

Howell Jones & Devine and Hubbard & Pettingill, for appellees.

FELT, P. J. Ibach, C. J., Caldwell, Moran, Hottel and Shea JJ., concur.

OPINION

FELT, P. J.

This is an appeal from a judgment of the St. Joseph Circuit Court wherein a mandatory injunction was ordered issued against appellant in favor of appellees, commanding the removal of certain obstructions from the St. Joseph river in the city of South Bend, Indiana.

The errors assigned and relied on by appellants are as follows: (1) The overruling of the demurrer to the first paragraph of amended complaint; (2) the same as to the second paragraph of the amended complaint; (3) error in each of the first and second conclusions of law, respectively; (4) error in overruling appellant's motion for a new trial.

The new trial was asked on the ground that the decision of the court is contrary to law; that it is not sustained by sufficient evidence; and that each of the special finding of facts is not sustained by sufficient evidence.

The paragraphs of complaint are identical, except the second paragraph of amended complaint contains the averment that the St. Joseph river is a navigable stream, which averment is not in the first paragraph.

It is in substance averred that the South Bend Manufacturing Company is a corporation organized under an act of the general assembly of Indiana passed in 1842; that the company was authorized to construct a dam across the St. Joseph river at or near the town of South Bend and to acquire certain property and do certain things to utilize the water power made available by such dam; that in pursuance of said act, in 1843, said company erected a dam across the river, purchased land along the river, built raceways, installed water wheels, and did the other things necessary to use the water power; that continuously since that date the company has owned a large interest in said dam and still owns the same and has continuously used and now uses the waters of said river to supply power for manufacturing purposes and the stockholders of said company and other parties under grants from said company also use such power for like purposes; that the South Bend Manufacturing Company provides power for pumping water into the mains of the city of South Bend to supply it with water for fire protection and for other purposes; that each stockholder in the company is entitled to use 11 1/9 square inches of water from the head of water created by said dam; that the rental value of the water power created by said dam is more than $ 10,000 per year; that the efficiency of said dam in holding a head of water and furnishing power is greatly impaired when the water is obstructed in its flow below the dam, because such obstructions throw the water back upon the dam and water wheels which it uses to develop power for manufacturing purposes; that a short distance below said power house the Bissell Chilled Plow Works has for a long time deposited refuse, ashes, slag and other materials along the west bank of the river and out into the bed of the stream for a distance of 100 feet where there was formerly a depth of water at normal stages of the river of from three to six feet, which obstruction also extended north and south for more than 100 feet and covers an area in the original bed of the stream, which is particularly described; that such deposits are backing up a large volume of water upon said dam and water wheels and thereby depriving the Oliver Chilled Plow Works of the continuous use of fifty horse power otherwise available and also depriving the South Bend Manufacturing Company of more than 100 horse power, all of which power is needed by said companies in their business; that the loss of said power in the manner aforesaid has in the past caused, and will in the future cause, said companies great and irreparable injury and damage; that the Bissell Chilled Plow Works is now constructing a permanent concrete wall over and upon said deposits in the river, which wall is two feet thick and twelve feet high and projects out into the bed of the river beyond its west bank about fifty feet and extends north and south a distance of fifty feet; that said wall is more than 100 feet below the raceway at said power house, more than 600 feet below said dam and throws a large volume of water back upon said dam and water wheels and thereby diminishes the power that would otherwise be available by reason of said dam and water wheels; that the aforesaid obstruction causes continuous damage to appellees which cannot be compensated in a money judgment and is irreparable because appellant intends to continue to maintain said obstructions for all time and declines to remove the same; that appellees are deprived of water power and if appellant is not restrained and enjoined from continuing such obstructions and compelled to remove said wall and other obstructions the injury caused thereby will be continuous and permanent; that said obstructions have been created and erected without the knowledge, assent or concurrence of appellees. The prayer asks that appellant be enjoined from further work on said wall or from filling the bed of the river; that it be compelled to remove said wall and other obstructions aforesaid from the river and to restore the flow of the stream to its natural course and be perpetually enjoined from obstructing the bed of the river, and for all proper relief.

Appellee contends that no questions are presented by the demurrer to the complaint for want of a memorandum required by the sixth clause of the act of 1911, Acts 1911 p. 415, § 344 Burns 1914.

The record shows that the suit was begun on July 14, 1910, and the act invoked was not in force until April 21, 1911. The fourth section provides that it shall not affect litigation pending at the time the act became effective. However, most of appellants' propositions and points are directed to the sufficiency of the evidence, the finding of facts, the conclusions of law and the judgment. Chicago, etc., R. Co. v. Dinius (1913), 180 Ind. 596, 626, 103 N.E. 652. The only point specifically urged against the sufficiency of the complaint is that it is not shown in the averments that the South Bend Manufacturing Company has been damaged in any way by the alleged wrongful acts of appellant. The averments are sufficient to withstand the demurrer in this respect. The questions urged by appellant against the pleadings are also presented in considering the conclusions of law stated on the finding of facts and by the motion for a new trial. Sell v. Keiser (1911), 49 Ind.App. 101, 102, 96 N.E. 812; Town of Cicero v. Lake Erie, etc., R. Co. (1912), 52 Ind.App. 298, 308, 97 N.E. 389.

While the question is not presented by the briefs, our examination of the record discloses the fact that the exceptions to the conclusions of law were not duly taken. The special finding of facts and conclusions of law thereon were announced and filed May 12, 1913, and no exceptions to the conclusions of law were taken at that time. Nothing further was done in the case until May 16, 1913, on which date we find the following entry: "Comes now again the parties herein by counsel and upon the special finding of facts and conclusions of law heretofore filed herein, the defendant The Bissel Chilled Plow Works excepts separately and severally to each of the two conclusions of law stated by the court upon the foregoing facts," etc. § 656 Burns 1914, § 626 R. S. 1881, provides: "The party objecting to the decision must except at the time the decision is made." This provision of the statute has been frequently construed by this and the Supreme Court and as applied to exceptions to conclusions of law requires the party objecting or excepting thereto to take his exceptions at the time the special finding of facts and conclusions of law are filed. Hull v. Louth (1887), 109 Ind. 315, 333, 10 N.E. 270, 58 Am. Rep. 405; Chicago, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 237, 241, 64 N.E. 860, and cases cited; Starr v. Swain (1914), 182 Ind. 313, 106 N.E. 357, 358.

But in view of our ultimate conclusion in the case and the fact that practically the same questions are raised by the assignment that the court erred in overruling the motion for a new trial, we have concluded to use the finding of facts as the basis of our decision, rather than a statement of the evidence since the ultimate conclusion will be the same in either event.

The finding of facts is very lengthy, goes into many details and in the main follows the averments of the complaint. Some of the facts averred are not controverted. The substance of the finding material to a decision of the question presented is as follows: The St. Joseph river is a navigable stream but has not been navigated since 1852, except by small boats over certain limited portions of the stream; that there are several dams across the stream in the states of Michigan and Indiana which have been in existence more than twenty years and those at South Bend, Mishawaka and Elkhart have been in existence for more than forty years; that prior to 1870 there was a lock of South Bend by which boats were passed around the dam but its use was discontinued about 1852, and it fell into decay and in 1870 was filled up,...