Conwell v. Emrie
| Decision Date | 06 June 1853 |
| Citation | 4 Ind. 209 |
| Parties | Conwell v. Emrie |
| Court | Indiana Supreme Court |
ERROR to the Dearborn Circuit Court.
The judgment is affirmed with costs.
J Ryman, for the plaintiff.
Davison J.
Trespass on the case by Conwell against Emrie. Plea, not guilty. The cause was submitted to a jury. Verdict for the defendant. Motion for a new trial overruled, and judgment on the verdict.
The following are the facts proved on the trial:
The plaintiff, in June, 1846, was, and still is, the owner in fee of a certain close or tract of land in Dearborn county, situate at the foot of, and on the north side of a certain public road, on which close he had a tan-yard. The defendant, as supervisor of the road district &c., constructed a culvert across the road in such a manner as to convey the water from the hill-side into and upon the tan-yard, whereby the same was seriously injured. The road was so situated that a culvert across the same was at that time, necessary; but it might have been made a few yards further east, so as to answer the purpose for which the one in question was constructed, without serious injury to any one; but it would have cost from 15 to 50 dollars more than the one constructed. At the time the culvert was built, the farm, on the tract of land, was in the possession of one Groves, as tenant under the plaintiff; but the tan-yard was then in the possession and use of the plaintiff. Groves was authorized by the plaintiff to see that his property in that neighborhood was not injured; and at the time the culvert was built, he remonstrated against its construction; and immediately thereafter, the defendant offered to cut or dig a ditch from the mouth of the culvert through the lands of the plaintiff, so as to convey the drainage of the hill-side passing through the culvert between the tan-yard and the dwelling house, on the same land occupied by Groves; but Groves would not allow the same to be done. The ordinary taxes for keeping the roads in repair, were for that year inadequate for the purpose. The defendant, before he built the culvert, took the advice of divers hands working on the road with him, with respect to the place where it should be constructed, and they, in good faith, advised its construction at the place where it was made.
The Court gave various instructions to the jury, and among them the following: "That if the defendant offered to dig a ditch by which the water, &c.,...
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...private right, and from which damage has ensued to another. McCord v. High, 24 Iowa 336; Tearney v. Smith, 86 Ill. 391; Conwell v. Emric, 4 Ind. 209; Hicks v. Dorn, 44 N.Y. 47; Elder v. Adams, 2 Metc. 599; St. Peter v. Denison, 58 N.Y. 416. Nor does it make any difference upon principle tha......
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Nagle v. Wakey
...sustained by another on account of the negligent and improper erection of the culvert over the stream of water was recognized in Conwell v. Emrie, 4 Ind. 209. * * * The powers of road supervisors are similar to those exercised by cities, through their agents, in grading, paving, and otherwi......
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Wiggins v. Holley
...instruction to the jury cannot be assigned for error, if it be clear that the jury were not misled by the instruction. In Conwell v. Emrie, 4 Ind. 209, the language is follows: "We think the instruction was erroneous; but still we do not consider that error sufficient cause for reversing th......
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Smith v. Downing
... ... Nor do the proofs ... furnish any data upon which damages, on that account, could ... have been estimated. Conwell v. Emrie, 4 ... Ind. 209 ... We ... perceive no sufficient ... ...