Chenowith v. Hicks
| Citation | 5 Ind. 237 |
| Parties | Chenowith v. Hicks and Another |
| Decision Date | 08 June 1854 |
| Court | Indiana Supreme Court |
ERROR to the Vermillion Circuit Court.
The judgment is affirmed with costs.
John P Usher, for the plaintiff.
E. W McGaughey and Joseph A. Wright, for the defendants.
Hicks and English brought an action on the case against Chenowith for diverting a spring branch from its natural channel. The declaration contains three counts. The first and second counts are for diverting the water, &c., without reference to the use made of it by the defendants in error. The third count is for diverting the water from the slaughter house of Hicks and English.
The defendant below filed six pleas. The first is the general issue. The second and third pleas are in substance the same. They allege that Chenowith has been the owner of the land on which the spring rises ever since 1825; that he built a dwelling, barn, and other outhouses, with reference to the use of the spring, to the value of 2,000 dollars; that he has been in the habit of keeping a large amount of stock; that in 1847, and before the erection of the slaughter-house, he dug a small ditch for the purpose of conducting a part of the water of the spring to a point convenient to his stables and yards, to be used as stock water, taking no more than was necessary for that purpose, &c.; that the residue passed off in the accustomed channel over the lands of Hicks and English.
To these pleas there were replications, that Chenowith did take more water than was necessary, &c., and that the excess passed off in a new route and different direction from its wonted course, concluding to the country.
The fourth, fifth, and sixth pleas take the ground that the slaughter-house was a common and public nuisance. The fourth plea boldly assumes that the diversion of the water, in addition to procuring stock water, was the means resorted to for abating the nuisance. The fifth and sixth pleas aver that the slaughter-house was wilfully and maliciously erected to injure and annoy Chenowith.
General demurrer to these latter pleas sustained.
It is not necessary to pass upon the merits of these pleas, as the matter pleaded was admissible under the general issue, and did in point of fact go to the jury.
Trial on the issues formed on the first, second and third pleas, and verdict of guilty. The damages were assessed at 50 dollars.
The evidence is all set out in the record in the usual mode.
On the first and second counts it clearly appears that the plaintiffs below were not entitled to more than nominal damages, if indeed to that even. Most of the evidence is referable to the third count, viz.,...
To continue reading
Request your trial