Capes v. Barger

• Decision Date: 15 January 1953
• Docket Number: No. 18336,18336
• Citation: 123 Ind.App. 212,109 N.E.2d 725
• Parties: CAPES et al. v. BARGER et al.
• Court: Indiana Appellate Court

Page 725

109 N.E.2d 725

123 Ind.App. 212

CAPES et al. v. BARGER et al.

No. 18336.

Appellate Court of Indiana, in Banc.

Jan. 15, 1953.

George F. Sammons, Kentland, Robert B. Wright and Cope J. Hanley, Rensselaer, for appellants.

Emmet M. LaRue, Rensselaer, for appellees.

CRUMPACKER, Presiding Judge.

The appellants Capes and Capes and the appellees Barger and Barger are the owners of adjoining farms in Jasper County, Indiana, and the appellant Lohr rents the Capes land on a crop-sharing arrangement. The appellees constructed a dam on their land which caused water to back up on a portion of appellants' farm and destroy the growing crops thereon. They sued to compel the appellees to remove the dam and to collect damages. The court found for the appellees and the judgment is that the appellants take nothing by reason of their complainant. They ask a reversal because (1) the decision of the court is not sustained by sufficient evidence, and (2) the decision of the court is contrary to law.

The decision of the court being negative, the first specification presents no question for review. Coleman v. New York, Chi. & St. L. R. R. Co., 1951, 121 Ind.App. 616, 101 N.E.2d 721. The appellants contend however that the court's decision denies them the relief to which the evidence shows they are entitled and hence is contrary to law. In re Estate of Collinson, 1952, Ind., 108 N.E.2d 700.

The parties are agreed that the appellees, being owners of the lower land, have a legal right to dam against surface water draining off the appellants' land and are not responsible for damages by reason of the accumulation of water above the obstruction. Ramsey v. Ketcham, 1920, 73 Ind.App. 200, 127 N.E. 204; Watts v. Evansville, etc., R. Co., 1921, 191 Ind. 27, 129 N.E. 315. They are also agreed that the appellees may not dam a natural water course to prevent water therein from entering upon their land and that the removal of such an obstruction may be enforced by mandatory injunction and the injured landowner may recover resulting damages. Foster v. Malsbary, 1927, 86 Ind.App. 411, 157 N.E. 446; Trout v. Woodward, 1917, 64 Ind.App. 333, 114 N.E. 467. Such being the law it is apparent that the only issue the trial court had for determination was the nature of the water which collected on the appellants' land by reason of the dam the appellees built and maintained. This was an issue of fact and the court found the water involved was surface water and therefore concluded that the law is with the appellees. If there is any evidence of probative value in the record to support such finding of fact we cannot reverse.

Water from falling rains or melting snows which is diffused over the surface of the ground or which temporarily flows upon or over the surface as the natural elevations and depressions of the land may guide it but which has not definite banks or channel, is surface water. Taylor, Administrator v. Fickas, 1878, 64 Ind. 167; Ramsey v. Ketcham, supra. If the natural depressions and elevations of the land form a way for water but such way has no well defined banks or channel and carries no water except that which drains into it from adjoining lands in wet seasons or as the result of freshets, then such way is not a natural water course but a mere surface drain and falls within the doctrine that surface water is a common enemy which any proprietor may combat as best he can. New Jersey, etc., R. Co. v. Tutt, 1907, 168 Ind. 205, 80 N.E. 420; Gaskill v. Barnett, 52 Ind.App. 654, 101 N.E. 40.

There is evidence in the record which tends to prove that the water involved in this litigation came from rains which fell in great quantities in June 1950 and as a result thereof the appellants' land 'looked like a lake.' From the south line of the appellants' land, in a northwesterly direction for approximately 80 rods to the south line of the appellees' land, there is a fall of 3.17 feet and water drains along the natural contours of the land from the appellants' farm...