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

• Decision Date: 13 December 1912
• Docket Number: No. 7,742.,7,742.
• Citation: 100 N.E. 22,53 Ind.App. 156
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. TRUE.
• Court: Indiana Appellate Court

53 Ind.App. 156

100 N.E. 22

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

v.TRUE.

No. 7,742.¹

Appellate Court of Indiana, Division No. 2.

Dec. 13, 1912.

Appeal from Circuit Court, Dearborn County; George E. Downey, Judge.

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

The complaint alleged in substance that the appellee (plaintiff) owned certain land in Dearborn county, described in the complaint, consisting of approximately 166 acres, of which 12 acres is bottom land, lying south of and adjoining Tanner's creek, and that for more than 40 years said creek has been a natural water course, with well-defined banks and channel, and that for 40 years or more a natural water course, with well-defined banks and channel, and known as Fly's run, emptied into said Tanner's creek at or near the point where appellee's west boundary line intersects said Tanner's creek; that appellant in the years 1903, 1904, and 1905 made changes in its line and roadbed from Lawrenceburg Junction, Ind., to Sunman, Ind., by reducing its grades and straightening its tracks, and constructed its tracks in the channel of Tanner's creek for 1,000 feet west of appellee's west boundary line, and that in said construction appellant made a large fill of earth and stone for its tracks to rest upon, and built said fill for 1,000 feet west of said boundary line in the channel of said creek, filling up said channel for said distance; that said channel for said distance was about 60 feet wide, and that appellant excavated a new channel for said creek, immediately south of said old channel, but built said new channel only 20 feet in width, and it was not large enough to accommodate the water of said creek during rainy seasons, and that after said roadbed was built the water of said creek ran through said new channel, and washed out said new channel to a width of 45 feet for a distance of 750 feet, and the earth and stone washed from said new channel by the water of said creek were deposited in the channel of said creek at the point where Fly's run empties into said creek, and that by reason of the construction of said roadbed and the changing of the channel of said creek there has been such deposit formed for the last two years, about 700 feet in length and 75 feet in width, thereby changing the channel of said creek and said run at said point, and causing the water of said run or creek, when it rains and either of said creeks are rising, to leave their channels and flow upon the lands of appellee for a distance of 1,600 feet, which has washed a channel through said bottom land, for a distance of 1,600 feet, 60 feet wide and 6 feet deep across the middle of said 12 acres; that by reason thereof said bottom land is rendered unfit for farming purposes, and that said appellant in the construction of said roadbed in the channel of said Tanner's creek, and changing the channel and course of said Tanner's creek and Fly's run, as alleged, did so wrongfully and without right, and without the consent of appellee; that by reason of the premises appellee is damaged in the sum of $3,000, all of which was without negligence or fault on his part, for which amount he demands judgment.

L. J. Hackney, of Cincinnati, Ohio, F. L. Littleton, of Indianapolis, and T. S. Cravens, of Lawrenceburg, for appellant. Estal G. Bielby, of Lawrenceburg, for appellee.

ADAMS, J.

Prior to and during the year 1905, the appellant made certain changes in its railroad and roadbed, by reducing the grade and straightening its tracks. At a point in Dearborn county, Ind., near to the lands of appellee, appellant, in the prosecution of such work, filled up the channel of Tanner's creek, a natural water course, for a distance of 1,000 feet, and constructed a fill of earth and stone in the bed of said natural water course for its track to rest upon, and excavated a new channel for said creek immediately south of the original water course. The natural channel of Tanner's creek was 60 feet wide, and of ample capacity to receive and carry off the water, for which it provided an outlet, without injury to appellee's lands. The channel constructed by appellant was but 20 feet wide, and not large enough to accommodate the water received into said creek during the rainy season. As a result a new channel 45 feet wide was washed out for a distance of 750 feet, and earth and stone washed from said new channel was deposited in the bed of said creek at the point where Fly's run empties into Tanner's creek. These are briefly some of the averments of the complaint, with the further averment that, on account of insufficient capacity of the new waterway, appellee's bottom lands were rendered unfit for farming purposes, to his damage in the sum of $3,000. An issue of fact was formed by an answer in denial, the cause was tried by a jury, resulting in a verdict for appellee in the sum of $850, upon which verdict the court rendered judgment.

The errors assigned separately are all embraced in the specification that the court erred in overruling appellant's motion for a new trial. With their general verdict, the jury returned answers to certain interrogatories. By these answers, the jury found that the...