City of Crawfordsville v. Bond

• Decision Date: 19 June 1884
• Docket Number: 11,231
• Citation: 96 Ind. 236
• Parties: The City of Crawfordsville v. Bond
• Court: Indiana Supreme Court

96 Ind. 236

The City of Crawfordsville v. Bond

No. 11,231

Supreme Court of Indiana

June 19, 1884

From the Montgomery Circuit Court.

A Campbell, E. C. Snyder and M. W. Bruner, for appellant.

T. E Ballard and M. E. Clodfelter, for appellee.

OPINION

Franklin C.

This action was brought by the appellee against the appellant to recover for certain damages alleged to have resulted from the flowing of surface water through a culvert in the road bed of the Indiana, Bloomington and Western Railway. A demurrer was overruled to the complaint, and the defendant answered in six paragraphs, to which demurrers were sustained to all but the sixth, which is a denial. There was a trial by jury; verdict for appellee for $ 150. A motion for a new trial was overruled, and judgment rendered upon the verdict.

The errors assigned are: The overruling of the demurrer to the complaint, the sustaining of the demurrers to the first, second, third, fourth and fifth paragraphs of the answer, and the overruling of the motion for a new trial. The demurrer to the complaint stated two grounds of objection, defect of parties, and want of sufficient facts. The first is mainly relied upon. And it is insisted that the Indiana, Bloomington and Western Railway Company should have been made a party defendant. The complaint expressly charges that the defendant committed the wrongs complained of, and says nothing about the railway company having anything to do with them. There may be a cause of action separately against the railway company, or jointly with the defendant; but, if so, it is not shown by this complaint, and we do not think that the question as to whether the railway company ought to be made a party defendant is presented by demurring to the complaint. Where the want of proper parties does not appear in the complaint, if made available, it must be made to appear by answer, or in the evidence under a denial, by proving that the railway company did the acts that caused the injury complained of, and that the defendant had nothing to do with the matter.

There are sufficient facts alleged in the complaint to constitute a cause of action against the defendant. There was no error in overruling the demurrer to the complaint.

In connection with the overruling of the demurrer to the complaint, appellant's counsel discuss the second specification of error, the sustaining of the demurrer to all the answers except the denial. These special paragraphs of answer, each and all, set up what the railway company had done, and that the defendant had nothing to do with the things complained of. They were each and all nothing more than special denials, and while the general denial was in there was no available error in sustaining the demurrers to these special denials.

Under the motion for a new trial, appellant's counsel complain of the giving of certain instructions, the modification of certain instructions asked, and the refusal to give others that were asked.

In their brief they only insist upon error in refusing to give instructions asked. In order to understand the application of the instructions asked and refused, it is necessary to give the substance of the facts in the case, which are as follows:

In the south part of the city of Crawfordsville, Franklin street runs east and west; Plum street runs north and south. The I., B. & W. R. W. is located on Franklin street. The appellant owns the lot of land in the southwest angle of the crossing of these streets; one Krugg owns the lot in the northwest angle of the crossing, and the lot immediately west thereof. The level of the ground, both north and south of Franklin street, and immediately west of said crossing, was below the grade of the street. A depression was in the ground extending from the north and running southeast through Krugg's west lot, entering appellant's lot near the northwest corner, and running diagonally southeast across the same. The drainage of that locality was to the southeast.

When Franklin street was improved and the railroad constructed, a sewer was put under the street and railroad bed at the point of this depression, and extended some distance south into appellee's lot before it emptied, until the depression was sufficiently low to allow the water to be discharged therefrom, without overflowing the north part of appellee's lot. Her residence was upon the north part of the lot. She filled up across the north end of her lot for a front yard to her residence, the water being discharged from the sewer south of the filling. Krugg filled up his lots, and there being a north and south alley upon the west side of his west lot, he forced the surface water back upon the alley, and in order to get rid of it constructed a box sewer from the alley to the sewer passing under the grade of the street and railroad.

Under this condition of affairs the city constructed a drain running south along the alley to the railroad grade, at which point, some fifty feet west of the old sewer, the railroad company constructed a culvert in their railroad grade upon a higher level than the old sewer, discharging the surface water into the ditch upon the south side of Franklin street, and the city closed up the old sewer.

The water discharged through the new culvert ran east along the ditch on the south side of Franklin street, until it came to plaintiff's lot, where it overflowed the ditch and flooded her front yard and garden, washed away large quantities of soil, destroyed her garden vegetables, and injured the shrubbery and walks in her front yard. Under this state of facts, shown by the evidence, appellant asked the court to instruct the jury as follows:

"First. If the new culvert was not built by the defendant, but by the railroad...