DeHart v. Aper
| Citation | 8 N.E. 275,107 Ind. 460 |
| Decision Date | 23 September 1886 |
| Docket Number | 12,336 |
| Parties | DeHart et al. v. Aper |
| Court | Indiana Supreme Court |
From the Tippecanoe Superior Court.
The judgment is affirmed, with costs.
B. W Langdon, T. F. Gaylord and G. P. Haywood, for appellants.
J. F McHugh and H. E. Ball, for appellee.
This was an action to recover damages for an injury done to the land of appellants by surface-water, coming, as was alleged from the lands of appellee and flowing over and upon the land of appellants.
The substantial allegations of the complaint were, that appellants owned a certain lot number 116, in the town of Chauncey, Tippecanoe county, in this State; that appellee owned certain real estate in the same county, the southeast corner of which was adjacent to the northwest corner of appellants' lot; that south of appellee's land, and adjacent thereto, and next to appellants' lot, and contiguous thereto, was, and is lot No. 121, in said town of Chauncey, and that on said lot 121 was a large natural reservoir, depression or basin covering about ten acres; that between lots 116 and 121 there was an unimproved street, the north end of which terminated at the southeast corner of appellee's land; that appellee's land, except the east side, was low, and was a natural basin; that the reservoir on lot 121 was a continuance of the basin on appellee's land; that the surface of appellants' land was lower than appellee's land; that appellee had obstructed the flow of water from his land to lot 121, and to drain his own land had dug, permitted, or caused to be dug, a ditch to the southeast corner of his land, and thence on to the improved street in the town of Chauncey; that after the melting of the snow, and after and during the heavy rains of summer, the water flowed in torrents from the basin on appellee's land into said ditch, and on to and over appellants' land, and the water, because of an abrupt descent of forty feet on appellants' land, gathered force and momentum as it descended, and had carried away soil, gravel and sod, and had washed out trees, shrubbery, etc., to appellants' damage.
The cause was twice tried. At the first trial the jury failed to agree upon a verdict. The second trial resulted in a verdict and judgment for the appellee. Before the rendition of the judgment a motion for a new trial was interposed and overruled. One of the causes assigned for a new trial was newly discovered evidence, and the only contention here is upon the alleged sufficiency of the showing made by the appellants in support of that cause for a new trial.
The appellee, testifying as a witness, denied having constructed, or having authorized the construction of, the ditch complained of. There was nevertheless evidence tending to prove that the ditch was made by persons who had but a short time before been seen working in the appellee's field near by, and who were seemingly engaged as workmen upon the appellee's lands described in the complaint. Other circumstances were adduced, and relied upon, as tending to show that the ditch was dug by the appellee's employees, with his knowledge and at least implied consent.
Both of the appellants filed affidavits alleging that upon another trial they could prove additional and material facts by one Evans, a newly discovered witness. They also, at the same time, filed the affidavit of Evans, in which he stated, amongst other things, that he worked as a farm hand for the appellee during the years 1875 and 1876 "that, during the spring and summer of said year 1875, said defendant by himself, and this affiant for him, constructed" the ditch in question. The appellee then procured an additional affidavit from Evans, and filed it as a counter-affidavit to the one he had previously made. In this latter affidavit Evans withdrew some of his previous statements and modified...
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