"Dennis
Uhl and Charles H. Uhl, plaintiffs, complain of the city of
Logansport, and the trustees of the water-works of the city
of Logansport, to wit: William H. Johnson
Thomas Austin and Alfred U. McAllister, and respectfully show
to the court that the plaintiffs are partners, doing business
under the firm name and style of D. & C. H. Uhl; that
they are now, and have been for many years, engaged in the
business of manufacturing flour upon the banks of the Eel
river, in the city of Logansport, in said county; that as
such partners, and as a part of their partnership assets, the
plaintiffs are the owners of the following described
water-powers, water-rights, mill-races, mill-dams, and real
estate on Eel river in the said county of Cass, and State of
Indiana, to wit: The present and existing dam across Eel
river, opposite Elm street, and below the covered wooden
bridge at the end of Bridge street, in the city, which flows
the water of said river back to the foot of what was formerly
Hamilton & Taber's mill-race, and now owned by the
defendant, the city of Logansport, and all the water-power,
and water-rights from the said Hamilton & Taber mill-race
to the mouth of Eel river, together with a mill-race and all
the real estate between Eel river and the south side of Front
street in said city, from the said dam to the mouth of Eel
river, together with all the privileges and appurtenances
thereto belonging. Also a three-acre tract of land at the
foot of their said mill-race, bounded and described as
follows: Beginning at a stake at the mouth of Eel river, the
original corner of three sections of land granted to Joseph
Barron, Sr., in Cass county; thence north along the east line
of the said grant or reservation, five (5) chains and forty
(40) links, to a stone on the said line; thence south
forty-six (46) degrees west five (5) chains and thirty-eight
(38) links to a stone; thence five (5) chains and fifty (50)
links to the Wabash river; thence up the said river, with the
meanders thereof, to the place of beginning, the said lands
being a part of the water-power on said Eel river; that the
plaintiffs are the owners in fee of all the water-power,
water-privileges, and water-rights on Eel river from the
mouth of the said Hamilton & Taber mill-race to the mouth
of said Eel river; that
they have been the owners thereof for more than twenty years
immediately past, and have been in the peaceable enjoyment of
the same, they and their grantors, for more than fifty years;
that they are the owners, except as hereinafter stated, of a
valuable dam on the said stream of water, upon which they
have expended ten thousand dollars; that they and their
grantors have constructed a mill-race from the said dam, down
and along the said Eel river, upon their aforesaid lands,
with head-gates, at a cost of the full sum of ten thousand
dollars; that at the mouth of the said race, upon their said
real estate, the plaintiffs have constructed large flouring
mills, and supplied them with valuable machinery; that they
have erected suitable and valuable houses for storing grain,
as also other necessary and suitable buildings to be used by
them in their said business; that the said buildings cost the
plaintiffs, and are of the value of, thirty thousand dollars;
that for the past twenty-five years the plaintiffs have used,
operated and enjoyed the same in the manufacture of flour,
feed, and in storing grain and other property; that the said
water-power, improved as aforesaid, together with the mills,
machinery and buildings thereto attached, are of the value of
one hundred thousand dollars; that the defendant, the city of
Logansport, is a growing manufacturing city, and the
plaintiffs' said water-power, water-rights, and property
aforesaid, are within the corporate limits of the said
defendant; the said city is also a great railroad center,
within whose corporate limits are extensive railroad offices
and shops, in the operation of which great quantities of
water are used by the several railroad companies operating
the same, all of which water is furnished and sold by the
said city, defendant, to the said companies, through her
water-works to be hereinafter mentioned, and for these
reasons, the said water is rapidly increasing in value, and
plaintiffs aver that they have never at any time relinquished
any of their rights to nor interests in the said water,
waterpowers, water-rights and water-privileges to any person
or corporation.
"Plaintiffs further aver and charge that since the
making of the aforesaid improvements, to wit: In the year
1876 the defendant, the city of Logansport, purchased from
Messrs. Cecil & Wilson the upper contiguous water-power,
including the mill, millrace, upper dam, and all the
privileges and the appurtenances to the same belonging, being
the same formerly owned by Hamilton & Taber, for the
purpose of constructing and maintaining, appurtenant thereto,
water-works, ostensibly for fire protection, and to supply
citizens with pure water; and that in pursuance of the said
purpose the said defendant erected upon the lands purchased
of Cecil & Wilson, and now is maintaining and operating
her contemplated water-works, on Eel river in the said city,
immediately above the plaintiffs' aforesaid property,
consisting of a pump-house, with all needed machinery, deep
wells, and water pipes, extending from the said pump-house
and wells into all parts of the said city of Logansport, by
means whereof the said defendant is daily and continuously
drawing and diverting from the said Eel river, above the
plaintiffs' said dam and water-power, immense quantities
of water, to wit, ----- gallons, twenty-five horse-power per
day, which said water is permanently diverted from the said
Eel river and never returned thereto; that the defendants are
now, and have been for more than five years immediately past,
diverting each and every day, from the said Eel river, above
the plaintiffs' said property, fully ----- gallons, the
same being equal to twenty-five horse-power, which said water
is sold to sundry and divers citizens of the said city of
Logansport for sundry purposes, for which the defendant, the
said city, has received and still annually receives ten
thousand dollars; that the defendant, the city of Logansport,
is threatening, and intends to and will maintain and operate
said water-works, and permanently divert the water of Eel
river as aforesaid forever; that the quantity of water thus
permanently diverted from the said Eel river is yearly
increasing as the said city increases in population, as
manufactories increase in numbers and capacity,
and as the demands of the citizens for water increase; that
there is great danger of the defendants, ultimately and
before many years, diverting such large quantities of water
from Eel river in the manner aforesaid as to materially
injure and damage the plaintiffs' said water-power, and
finally destroy it.
"Plaintiffs
also aver that they are preparing to use and utilize part of
their said water by selling or leasing all of the same not
now utilized and used by themselves to manufacturers who
contemplate erecting extensive manufactories upon the said
property, and are now intending and are ready to do so, but
are prevented from so doing by the aforesaid wrongful acts of
the defendants, to the annual damage of the plaintiffs in the
sum of two thousand dollars.
"Plaintiffs
also aver that they have not, nor has either of them, nor has
any of their grantors, at any time, in any manner, granted
the defendants, nor anybody else, in any capacity, their
consent, permission, license, or privilege in any manner or
form, to divert any water from Eel river above their
aforesaid property, nor has either of the defendants, in any
manner, at any time, acquired the right to divert water from
said Eel river above the plaintiffs' aforesaid property.
"While
the plaintiffs hereby and at all times deny the right of the
defendants or anybody to divert water from the said Eel river
without plaintiffs' consent, they hereby consent that the
defendants may, through their said water-works, at times of
fire and for the purpose of suppressing fires, divert the
water from said river in all needed quantities for said fire
purposes. They do this as citizens of Logansport interested
in her prosperity, and willing thus to contribute to the
public good in times of public calamity.
"Plaintiffs
also aver that after the completion of the said works, the
defendant, the city of Logansport, duly established
according to law, a board of three trustees of the said
water-works; that the aforesaid William H. Johnson, Thomas
Austin and Alfred U. McAllister are the duly elected,
qualified
and acting trustees of the water-works of the city of
Logansport aforesaid, and hence are made defendants of this
action. Wherefore the plaintiffs pray that upon the final
hearing of this cause, the defendants, their agents and their
employees be perpetually restrained and enjoined from
diverting water from said Eel river, at any time, except
during times of...
