Chapman v. Lambert
| Decision Date | 17 November 1911 |
| Docket Number | No. 21,958.,21,958. |
| Citation | 96 N.E. 459,176 Ind. 461 |
| Parties | CHAPMAN v. LAMBERT. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Elkhart County; Vernon W. Van Fleet, Judge.
Action by Louisa J. Chapman against George Lambert. Judgment for defendant, and plaintiff appeals. Affirmed.
Transferred from the Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405).
L. D. Hall, for appellant. Davis & Schaefer, for appellee.
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. Judgment was rendered for defendant. Plaintiff appeals.
The court found the following facts: On the 29th day of December, 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, appellant had constructed on said land a private sewer for the use of the tract, to carry off surface water and sewage. The sewer began at a point 100 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 east of and adjoining the same. On December 29, 1899, appellant and appellee entered into a written agreement for the sale from appellant to appellee of a three-acre tract, 132 feet in width, off of the east side of Chapman's marsh, “together with the sewer improvements thereon”; also a 5 73/100-acre tract, 305 feet wide, off of 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 this twenty-ninth (29) day of December, 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 thereon by him, hereby agree to and with said party of the second part 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 said 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 agree 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 the same 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 the same, that 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 above mentioned shall contain all the provisions of this agreement.
Melville S. Chapman, who signed the foregoing contract, was a son of appellant, but 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, which was executed by plaintiff to defendant on January 10, 1901. Immediately after December 29, 1899, appellee went into 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 578/100acre 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 5 73/100 tract, and on the same day executed her deed for the three-acre tract. The latter contains no reference to the sewer. The defendant procured a...
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