Foster v. Malsbary
| Citation | 157 N.E. 446,86 Ind.App. 411 |
| Decision Date | 01 July 1927 |
| Docket Number | 12,960 |
| Parties | FOSTER ET AL. v. MALSBARY |
| Court | Court of Appeals of Indiana |
Rehearing denied October 13, 1927.
From Warren Circuit Court; Harley D. Billings, Judge.
Suit by Alfred E. Malsbary against Daniel E. Foster, Laura B. Clark and others, in which the defendants filed a counterclaim. From a judgment for plaintiff, the defendants appeal.
Affirmed.
Victor H. Ringer, for appellants.
Burton B. Berry, Wilbur D. Nolin, Carl Mehaffey and Cecil Haupt, for appellee.
Action by appellee against appellants asking for a mandatory injunction against them for the removal of a dam or levee built and constructed by them across the bed of a natural watercourse, alleging that the stream in question was a natural watercourse, and had been from time immemorial; that appellants constructed a dam across it, and that by said construction, the lands of appellee would be practically destroyed as to value.
Issues were formed by an answer in general denial, and a second paragraph pleading prescriptive right. Appellants also filed a counterclaim, averring, in substance, that the dam in question had been in existence from time immemorial, except when broken by freshets, or by appellee, or by other persons, and alleging that they had only repaired the dam in the exercise of their prescriptive right. They also alleged therein that appellee had constructed a dam along the stream involved, thereby diverting the flow of the stream into the present channel and against appellants' dam. There was an answer in denial to this counterclaim. At the trial, the court limited each side to twenty witnesses as to the location of the stream, and each side used the quota, the trial commencing on May 14, 1925, and the evidence ending May 29, 1925. On September 28, 1925, each side presented tentative special findings. On December 11, 1925, appellants filed their motion to open up the case for further evidence. This motion was overruled, and on December 19, 1925, the court filed special findings of fact and stated conclusions of law thereon in favor of appellee, upon which, after appellants' motions for a new trial were respectively overruled, and appellant bank was substituted as defendant in the place of Laura B. Clark, then deceased, judgment was rendered on the conclusions of law, from which, after appellants' motion to modify the judgment was overruled, this appeal, appellants assigning that the court erred: (1) In overruling their motion that the court open up the evidence and permit them to introduce additional evidence; (2) in each of its conclusions of law; (3) in overruling their respective motions for a new trial; and (4) in overruling their motion to modify the judgment.
The findings cover fifteen pages of the record, and twenty pages of appellant's brief, and after a careful consideration of them, we deem it unnecessary to set them out at length. It is sufficient for us to say that they were ample to sustain the court's conclusions of law that: (1) Said watercourse, where it crosses appellee's land and enters appellant's land, is a natural watercourse; (2) that appellee and all parties from whose lands waters flow into said stream are entitled to the unobstructed flow of said waters in said stream to its outlet; (3) that said stream being a natural watercourse, appellee, and any person through whose land said watercourse runs, has a right to remove any and all sand and gravel or other obstructions therein without liability to any lower landowner; (4) that appellee, as well as any other landowners through whose land said stream runs has the right to repair all breaks in the banks of said stream, and to remove sand and gravel washed down, and to throw them upon the banks of said stream although the result is the elevation of said banks; (5) that appellants have never acquired and do not now have any prescriptive right to the maintenance of the dam or levee where it now exists for the purpose of obstructing the waters from said creek; (6) that appellant Ora S. Clark, as agent for the owners of said land, and appellant Foster, the tenant thereon, wrongfully and unlawfully constructed said levee or dam in the fall of 1924 without the knowledge, consent or authority of appellee, to his damage; (7) that irreparable damages will result to appellee and his said land from the said wrongful acts of appellants by said construction of said levee or dam; (8) that appellee is entitled to receive, as prayed for, the sum of one dollar, and is entitled to have said obstruction or dam across the present outlet of said stream removed; (9) that appellants on their cross-complaint or counterclaim are not entitled to any relief; and the court finds against them; (10) that appellee...
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