Cleveland, C., C. & St. L. Ry. Co. v. Vettel

• Decision Date: 11 May 1920
• Docket Number: No. 10072.,10072.
• Citation: 127 N.E. 285
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. VETTEL.

127 N.E. 285

CLEVELAND, C., C. & ST. L. RY. CO.

v.VETTEL.

No. 10072.

Appellate Court of Indiana, Division No. 1.

May 11, 1920.

Appeal from Circuit Court, Bartholomew County; John W. Donaker, Judge.

Action by Theodore Vettel against the Cleveland, Chicago, Cincinnati & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank L. Littleton, of Indianapolis, Thomas E. Davidson, of Greensburg, and Baker, Richman & Neible, of Columbus, for appellant.

Tremain & Turner, of Greensburg, and Spaugh & Spaugh, of Columbus, for appellee.

REMY, P. J.

Action by appellee against appellant to recover damages for permanent injuries to his real estate alleged to have been caused by a wrongful erection by appellant of a dam and spillway across a certain stream or water course. This stream flows through lands owned by parties to the action, and the alleged obstruction was erected on appellant's land about one-half mile below the point where the water course leaves the lands of appellee. The dam and spillway were intended to be, and were, permanent in character, and their erection and maintenance, it is alleged, caused the water in the stream to back upon appellee's lands, and to submerge the outlets of certain tile drains emptying therein, thereby preventing such tile drains from properly draining the lands.

The errors assigned and relied on for reversal are that the trial court erred (1) in overruling appellant's motion for judgment on the answers to interrogatories returned by the jury with its general verdict; and (2) in overruling appellant's motion for a new trial.

The cause was tried on the third and fourth paragraphs of complaint, which as to most of their allegations are similar. The third paragraph alleges that appellant's dam was constructed in the year 1909, and charges a continuing and permanent appropriation of a part of appellee's land from the - day of April, 1911. The fourth paragraph contains an additional charge that in the year 1913 appellant's dam was washed out and destroyed by a flood, and was reconstructed one foot higher than when originally constructed, thus increasing the overflow on appellee's lands, and causing an additional appropriation of his lands.

In answers to interrogatories returned with the general verdict, the jury found that Jacob A. Hornung and wife were the owners of the real estate described in appellee's complaint, at the time appellant's dam was constructed, and until January 29, 1911; that during the year 1910, the dam erected by appellant caused the water in said water course to overflow onto said lands, and to cover the outlets of said drains emptying into said streams; that it was necessary for the water to get within about 18 inches of the top of the spillway in order to cover the outlets of said drains, and that it must run over the spillway to flood the lands in question; that the water was below the spillway in March, 1910,...