Chapman v. Lambert

• Decision Date: 17 November 1911
• Docket Number: 21,958
• Parties: Chapman v. Lambert
• Court: Indiana Supreme Court

96 N.E. 459

176 Ind. 461

Chapman v. Lambert

No. 21,958

Supreme Court of Indiana

November 17, 1911

From Elkhart Superior Court; Vernon W. VanFleet, Judge.

Action by Louisa J. Chapman against George Lambert. From a decree for defendant, plaintiff appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Affirmed.

L. D Hall, for appellant.

Davis & Schaefer, for appellee.

OPINION

Morris, J.

Louisa J. Chapman, appellant, commenced this action against George Lambert, appellee, for damages for collecting and discharging surface-water and sewage into her private sewer.

There was a special finding of facts made by the court and conclusions of law stated thereon. A decree was entered for defendant. Plaintiff appeals.

The court found the following facts: On December 29, 1899 appellant was the owner of a tract of land situated in the city of Elkhart, commonly known as "Chapman's marsh." Prior to that date she had constructed on said land a private sewer, to carry from said tract the surface-water and sewage. The sewer began at a point about one hundred feet west of the east line of her tract and ran west through the land and emptied into a public sewer. Her land was low and marshy, and lower than the land immediately adjoining it on the east. On December 29, 1899, appellant entered into a written agreement with appellee for the sale to him of a three-acre tract, 132 feet wide, off the east side of "Chapman's marsh, * * * together with the sewer improvements thereon;" also a five-and-seventy-three-one-hundredths-acre tract 305 feet wide, off the west side of the same tract. The purchase price was $ 8,456.25. As a part of the same transaction, and for the same consideration, the parties at the same time executed what is termed a supplemental agreement with reference to the real estate, which reads as follows:

"This agreement, made and executed December 29, 1899, by and between Melville S. Chapman and Louisa J. Chapman, parties of the first part, and George Lambert, party of the second part, witnesseth, that, whereas, said parties of the first part have this day entered into an agreement in writing with the party of the second part for the purchase and sale of certain real estate in the city of Elkhart by the parties of the first part to the party of the second part, said real estate being a tract of about three acres lying on the east side of a tract of land known as 'Chapman's marsh,' and about five and three-fourths acres lying on the west side of said 'Chapman's marsh,' said tracts of land being more specifically described in said articles of agreement, to which reference is made for a more complete description thereof; and whereas the parties of the first part have heretofore constructed a sewer, beginning in the city of Elkhart, Elkhart county, Indiana, at a point where the center line of South Sixth street in said city is intersected by the center line of Mulberry street, and extending eastwardly along a line in prolongation of the center line of Mulberry street, and on the center line of said Mulberry street about two thousand feet, and crossing said two tracts of land so sold to said party of the second part. Now, therefore, said parties of the first part, in consideration of the payment of the purchase price thereof by said party of the second part, hereby agrees to and with him that he may at any and all times hereafter make connections with said sewer for all the property so purchased by him from the parties of the first part, and for any and all other property owned by second party located within the district drained by said sewer, and any laterals hereafter connected therewith, and the parties of the first part shall be entitled to no additional compensation for any connections made by said second party with said sewer or its laterals. It is further agreed by and between the parties hereto that any and all repairs hereafter made upon said sewer shall be assessed pro rata per front foot against the property bordering on said sewer, and each of the parties hereto agrees with the other that in any and all deeds which he or they shall make for land fronting on said sewer he or they will bind the land so conveyed to pay its proportionate cost of all future repairs on said sewer, and it is agreed that neither party hereto shall ever obstruct said sewer in any manner, but shall keep it open for the use of all parties interested therein. It is further agreed by and between the parties hereto that if other parties owning real estate in the territory drained by said sewer shall desire to connect with said sewer, there shall be assessed against and collected from such other parties such sum as the parties hereto shall deem sufficient and proper for such privilege, and the proceeds thereof shall be equally divided between the parties hereto.

It is agreed that the deed to be made by the parties of the first part to the party of the second part for the real estate before mentioned shall contain all the provisions of this agreement.

In witness whereof the parties have hereunto set their hands and seals this December 29, 1899.

Melville S. Chapman

Louisa J. Chapman

George Lambert."

Melville S. Chapman, who signed the foregoing contract, was a son of appellant, and he owned no interest in the real estate at that time.

The description of the three-acre tract, in the first-mentioned contract, was, by mutual mistake, erroneous, but the tract is correctly described in the deed that was executed by plaintiff to defendant on January 10, 1901. Immediately after December 29, 1899, appellee took possession of the three-acre tract, and constructed sewers thereon, which he connected with the sewer originally constructed by appellant.

On December 29, 1900, plaintiff executed to defendant her deed for a part of the five-and-seventy-three-one-hundredths-acre tract, in which deed she reserved the right to use and make connections with the sewer, to extend the sewer and construct laterals thereto, and to grant to others the right to connect with the sewer and laterals. On January 10, 1901, plaintiff executed to defendant her deed for the remainder of the five-and-seventy-three-one-hundredths-acre tract, and on the same day executed her deed for the three-acre tract. The latter contains no reference to the sewer. Defendant procured a scrivener to draw the deed for the three-acre tract, but by mistake, gave him no instructions to embody therein the provisions of the supplemental contract concerning sewer rights and privileges of the parties. Plaintiff executed the deed without knowing the provisions thereof, but believed that it contained the provisions agreed...