Chicago & Indiana Coal Railway Co. v. Hunter

• Decision Date: 01 May 1891
• Docket Number: 14,857
• Citation: 27 N.E. 477,128 Ind. 213
• Parties: The Chicago and Indiana Coal Railway Company v. Hunter et al
• Court: Indiana Supreme Court

27 N.E. 477

128 Ind. 213

The Chicago and Indiana Coal Railway Company v. Hunter et al

No. 14,857

Supreme Court of Indiana

May 1, 1891

From the Benton Circuit Court.

Judgment affirmed, with costs.

S. H Spooner, W. H. Darroch and U. Z. Wiley, for appellant.

E. P Hammond, W. B. Austin, M. H. Walker, G. H. Gray and T. C Annabal, for appellees.

OPINION

McBride, J.

This was a proceeding by the appellant for the appropriation of certain lands in Newton county belonging to appellee Elijah Hunter for right of way.

Appraisers, duly appointed, having made their report, both parties filed exceptions to the award. The cause was taken on change of venue to Benton county, where it was tried by a jury. On the third day of the trial, but before the appellees had closed their evidence, the appellant filed its written motion, supported by affidavits, for leave to amend its articles of appropriation. This motion the court overruled. Appellant insists that the court erred therein, and it is over this question the principal controversy is waged. Appellees insist that the question is not properly in the record, but in this they are in error. It was properly saved and is fairly presented.

As a rule, the granting of leave to amend pleadings, after the issues are closed, and especially pending the trial, is a matter resting largely in the discretion of the trial court. It is only in cases where there seems to have been an abuse of that discretion, apparently resulting in injustice, that this court will interfere.

In the case of Chicago, etc., R. W. Co. v. Jones, 103 Ind. 386, 6 N.E. 8, the court said: "Whether a party shall be allowed to amend his pleadings after the issues are closed, is a matter resting very much in the discretion of the nisi prius court. The fact that in such a case leave of court is necessary, implies the right of the court to refuse permission to amend in any case except upon good cause shown, and, even when a showing is made, the matter is still within the legal discretion of the court, the leave to be granted or refused accordingly. But the decision of the nisi prius court, when cause is shown, is not conclusive. It may be reviewed in this court, and will be disapproved when substantial injustice appears to have been done."

It will be necessary for us to examine the entire record to determine whether or not, in the language of the court just quoted, "substantial injustice appears to have been done." If, from such an examination, it appears that no injustice resulted to appellant by reason of the refusal to permit the amendment, we will not be justified in reversing the cause upon that ground.

The exceptions filed by the appellee Hunter contained the following:

"b. Said lands of said defendant, other than that appropriated by said plaintiff, are, and will be, damaged in the sum of one thousand dollars on account of being caused to overflow with water by reason of the defective drainage made, and to be made, by said plaintiff on each side of its railroad track on said right of way, and by reason of the insufficient culverts and unnecessary culverts constructed by it across its right of way.

"c. By reason of its said appropriation, and the manner in which said plaintiff has dug trenches on each side of its railroad track on said right of way, said defendant will be put to an expense of one thousand dollars in drainage on his said lands, not proposed to be appropriated by said plaintiff."

There was evidence showing that on the south line of the land of appellee, Elijah Hunter, there was a ditch running east and west, in which the water flowed to the west. On the north side of this ditch there was an embankment some two feet high, made to prevent the water from overflowing from the ditch and running north on said appellee's land, the flow of the water being naturally northward from the ditch. The appellant, in making its railroad, cut this embankment on the right of way proposed to be appropriated in this action, and there was evidence tending to show that it did not securely repair the breach, and that, as a consequence, the water, in times of freshets, broke through or over the opening and overflowed a large quantity of appellee's land. There was, however, conflict in the evidence as to the condition in which appellant left the embankment, there being testimony upon its part tending to show that at the time of the trial the embankment had been restored to its normal condition.

The amendment which appellant proposed to make is as follows:

"The plaintiff agrees to construct and maintain an embankment on and across its said right of way of the uniform height of two feet, being as high as the face of the railroad at that point from the surface of the ground, at a point on its said right of way at or near the southeast corner of the northwest quarter of section eleven, in township twenty-seven north, of range eight west, in Newton county, Indiana. Said embankment so agreed to be constructed and maintained by the plaintiff, to connect with either side of the road-bed of plaintiff at that point, and also connecting with an embankment heretofore constructed and existing at that point along the north bank of an open ditch passing at this point, and in line with said old embankment. Said embankment to be so constructed as to form with said old embankment and the road-bed of said plaintiff's railroad, a complete barrier and levee, to resist the overflow of water to the full height of two full feet from the common surface of the ground at that point, and so protect the land of said defendant, Elijah Hunter, from the overflow of water from said open ditch or from any other source.

"Plaintiff further agrees to construct and maintain borrow pits or ditches along either side the line of its road-bed, through and across the lands of defendant, Elijah Hunter, over which the same passes, to wit: The northwest quarter of section eleven, the southeast quarter of section three, and the southwest quarter of section two, in said town and range, and to construct and maintain at the farm and public highway crossings on said land, culverts and waterways, so as to afford a free and unobstructed flow of water down and along said right of way, and discharge the same off and through the culverts and waterways at said public highway crossings, and to fill up and maintain at the west line of the public highways, on the east line of the southeast quarter of said section three, all borrow pits, ditches and excavations there made by them on its right of way at that point, and to form, construct and maintain at that point an embankment of the height of one foot from the common surface of the ground across its right of way so as to form a complete barrier against the flow of water through, over and across the right of way of plaintiff at that point upon and across the lands of said Elijah Hunter."

Those portions of the exceptions quoted were evidently...