Bump v. Sellers

• Decision Date: 09 October 1913
• Docket Number: No. 7,960.,7,960.
• Citation: 54 Ind.App. 146,102 N.E. 875
• Parties: BUMP v. SELLERS.
• Court: Indiana Appellate Court

54 Ind.App. 146

102 N.E. 875

BUMP

v.SELLERS.

No. 7,960.

Appellate Court of Indiana, Division No. 2.

Oct. 9, 1913.

Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.

Action by Charles B. Sellers against Belle Bump. Judgment for plaintiff, and defendant appeals. Affirmed.Fred. H. Bowers and Milo N. Feightner, both of Huntington, for appellant. John S. Branyan and Wilber E. Branyan, both of Huntington, for appellee.

IBACH, J.

This suit was brought by appellee to enjoin appellant from constructing a drainage ditch which would divert water from a stream flowing through appellee's land, to his damage. A perpetual injunction was granted as prayed.

It is assigned that the court erred in each of its conclusions of law upon its special finding of facts, and in overruling appellant's motion for new trial. This motion was upon the grounds, among others, that the finding of facts was not sustained by the evidence and is contrary thereto, that certain specific findings are not sustained by the evidence and are contrary thereto, and that the finding of facts is not full enough and does not state all the facts.

[1] Appellee urges that under our statute, section 585, Burns 1908, these are not statutory grounds for new trial, and that therefore no question was presented to the trial court by appellant's motion. The grounds for new trial, as provided by subdivision 6 of section 585, supra, are that “the verdict or decision is not sustained by sufficient evidence, or is contrary to law.” However, in the cases of Ellison v. Ganiard, 167 Ind. 471, 79 N. E. 450, and Parkison v. Thompson (1905) 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677, it is held a proper ground for new trial that the finding of the court is not sustained by sufficient evidence, or is contrary to law. The term “finding” is regarded as equivalent to the term “decision,” and a motion employing such term challenges the correctness of the court's decision. Therefore appellant's motion by the assignment that the finding of facts was not sustained by the evidence and is contrary thereto properly presented to the lower court and to this court the question whether his decision was sustained by sufficient evidence.

Briefly stated, the court found the following facts:

(1) Plaintiff owns a certain described tract of land in Huntington county; defendant owns another described tract bordering on the east of the land of the plaintiff.

(2) From time immemorial a natural water course having a well-defined channel, and natural bed and banks having its source on the lands to the south and east of the lands of plaintiff and defendant, has flowed across plaintiff's lands, thence across the western part of the defendant's lands, thence across the eastern part of plaintiff's lands, and thence again across defendant's lands into the Wabash river. There are several natural springs of water on the defendant's land from which the water naturally issues and flows for the entire year, and, in addition to the other natural supply of water, the water from said springs flows into said natural water course. Plaintiff uses his land for pasturing cattle and raising hogs and uses said water course to supply said animals with water and has arranged his fences and fields for that purpose. The location of said lands, water course, springs, fields, and fences, and certain boggy land and the proposed drain are shown by the plat annexed:

Image 1 (2.64" X 4.18") Available for Offline Print

(3) That prior to the commencement of this action defendant intended and threatened to construct a six-inch tile drain on her land, commencing at said stream on the north end of said land and to extend the same up over her land and under said natural water course to a point in said boggy land and near said spring, said proposed drain being indicated by a red line on the above plat, to...