Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Wisehart

• Decision Date: 26 June 1903
• Docket Number: 20,010
• Citation: 67 N.E. 993,161 Ind. 208
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Wisehart
• Court: Indiana Supreme Court

67 N.E. 993

161 Ind. 208

Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Wisehart

No. 20,010

Supreme Court of Indiana

June 26, 1903

From Henry Circuit Court; W. O. Barnard, Judge.

Action by Sarah A. Wisehart against the Cleveland, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

M. E Forkner and G. D. Forkner, for appellant.

W. A Brown and F. C. Gause, for appellee.

OPINION

Jordan, J.

Appellee successfully prosecuted this action against appellant railroad company for damages arising out of an alleged tort committed (1) by flowing water from a natural watercourse onto her lands; (2) in gathering surface-water into a basin upon its right of way and discharging such water onto her premises. The cause was submitted to the jury upon the second, third, and fourth paragraphs of the complaint. The record expressly discloses that the jury found in favor of appellee upon the third and fourth paragraphs.

Alleged errors based on overruling the demurrer to each of the two latter paragraphs, and in denying a motion for a new trial, are discussed and urged by counsel for appellant for a reversal of the judgment below.

The third paragraph of the complaint alleges the plaintiff's ownership of the lands described, and avers that the defendant is a railroad company and corporation owning and operating a railroad through Henry county, Indiana; that its right of way abuts on the north the lands of the appellee. The pleading then alleges as follows: "That there is and has been from time immemorial an ancient natural watercourse on and across the lands of the plaintiff herein described, in which said watercourse the water has flowed from a northeasterly direction on and across the lands of the plaintiff in a general southwesterly direction, and prior to the construction of the road and roadbed of the defendant said waters flowed in an ancient natural watercourse from off the lands of the plaintiff into and across the lands immediately adjoining upon the south, and thence southwesterly, as an ancient and natural watercourse to Blue river; that at the time the defendant acquired title to the right of way, it constructed on and upon said right of way, along the south line of the plaintiff's said land, and adjacent thereto, a roadbed of earth and timbers, and so constructed the same as completely to fill up and obstruct said natural watercourse, and completely to cut off and prevent the water so flowing in said natural watercourse from off the lands of the plaintiff; and for the purpose of conducting the water so flowing in said watercourse from the point where said defendant so obstructed said watercourse westwardly to Blue river, a distance of about forty rods, it dug and constructed an open ditch and channel from said point of said obstruction to said river, and thereby diverted the water from its natural course at said point; that said ditch so constructed from said point of obstruction was at said time, and ever since has been, entirely inadequate to carry the water so flowing in said natural bed across the lands of the plaintiff from said point of obstruction to said Blue river; that at the time said defendant so constructed its said roadbed along, and adjacent thereto, the lands of the plaintiff as aforesaid, it constructed a large trestle bridge as a part of its said roadbed, about fifteen feet high and 150 feet long, the east end of which adjoins up to a high earth embankment near the southwest corner of the lands of the plaintiff above described, which said trestle bridge extended from thence west 150 feet, and over and across a public highway, and over and across said Blue river and the lowlands adjacent thereto; that afterwards, and prior to the time of the further grievances herein stated, the defendant built and constructed a large embankment where said bridge stood, and by that means and thereby caused the earth used in said construction to spread off of its right of way on the north side thereof, and fall into and fill up the ditch and waterway which it had constructed from the point of said obstruction aforesaid, and has ever since permitted and allowed said waterway to become, be, and remain obstructed so as to prevent the water from flowing therein to said Blue river; that said ditch and waterway, so constructed by said defendant, from the point where it cut off and obstructed said natural watercourse by the construction of said embankment, is partly cut and dug on the lands of the plaintiff, and on land adjoining on the west owned by persons other than defendant; that by reason of which the water so flowing in said natural watercourse across the lands of the plaintiff, thence into the ditch and waterway so constructed by the defendant as aforesaid, the water backs upon the lands of the defendant, and stands in pools and stagnates in the summer time upon the lands of the plaintiff, and spreads out and overflows said lands so as completely to drown and destroy the crops of the plaintiff, and render said land wholly unfit for cultivation."

It is contended that this third paragraph of complaint is insufficient on demurrer, and several reasons are assigned, among which it is said that the act of which appellee complains is not shown by any direct averments of fact to be due to the negligence of appellant; the argument being advanced as follows: "The defendant, in doing what it did, was in the lawful exercise of its corporate rights. It was especially authorized by statute to divert and fill up the stream, and the right to dig side ditches and drain surface water off its right of way is a right inherent in all railroad companies, incident to the very act of constructing and maintaining the road. It is certainly elementary that no action can arise from the doing of a lawful act in a lawful manner, and unless it is done in an unlawful, wrongful, or negligent manner; and, wherever the act complained of is or may be in itself lawful, in order to constitute a good cause of action based thereon, the complaint must aver that the lawful act was unlawfully done, wrongfully, negligently, or carelessly. This the complaint in this case nowhere avers."

It will be observed that what is alleged in the first part of the pleading in question discloses that appellant, in the construction of its roadway at the time it acquired title to its right of way, obstructed a natural watercourse so as completely to cut off and prevent the water thereof from flowing onto the lands of the appellee, and, for the purpose of conducting said water to Blue river, it dug and constructed an open ditch or channel, and thereby, as alleged, it diverted the water from its natural course; that said ditch was entirely inadequate to carry the water from the point of obstruction to Blue river. These facts are apparently alleged as a matter of inducement or preliminary to the principal grievance of which appellee complains, viz., that by constructing an embankment near where it had built a trestle bridge, it caused the dirt used in the construction of said embankment "to...