Gagnon v. French Lick Springs Hotel Co.

• Decision Date: 29 December 1904
• Docket Number: No. 20,284.,20,284.
• Citation: 163 Ind. 687,72 N.E. 849
• Parties: GAGNON et al. v. FRENCH LICK SPRINGS HOTEL CO.
• Court: Indiana Supreme Court

163 Ind. 687

72 N.E. 849

GAGNON et al.

v.FRENCH LICK SPRINGS HOTEL CO.

No. 20,284.

Supreme Court of Indiana.

Dec. 29, 1904.

Appeal from Circuit Court, Orange County; T. B. Buskirk, Judge.

Action by the French Lick Springs Hotel Company against George S. Gagnon and others for injunction. From interlocutory orders, defendants appeal. Affirmed.

George Shirts and W. H. Talbott, for appellants. John W. Kern, Smith & Korbly, McCart & McCart, W. J. Buskirk, and Field & Kurrie, for appellee.

DOWLING, C. J.

On July 22, 1903, the appellee, the French Lick Spring, Hotel Company, together with four other persons, filed its complaint in the Orange circuit court against the appellants, George S. Gagnon, the Baden Lick Sulphur Springs Company, John L. Howard, and John C. Howard, asking that the defendants be temporarily restrained and enjoined from pumping water on the premises of the defendants, and from doing other acts alleged to be wrongful and injurious to the property of the plaintiffs, and that on the final hearing the injunction be made perpetual. On the same day, without notice, an emergency being disclosed, in the vacation of said court the judge thereof issued a temporary restraining order pursuant to the prayer of the complaint, and fixed a day for the hearing of said application. On July 30, 1903, the day set for such hearing, the parties appeared, and the complaint was dismissed as to all the plaintiffs except the French Lick Springs Hotel Company, and that company as the sole plaintiff filed two additional paragraphs of complaint. The judge, having heard the proof upon the complaint as amended, on August 3, 1903, in vacation, granted a temporary injunction against all the defendants who had been served with process. On the first day of the next term of the Orange circuit court, which was October 26, 1903, an amended complaint was filed by the plaintiff, the French Lick Springs Hotel Company, against the same defendants, and the latter, excepting John C. Howard, who had not been served with process, moved the court to dissolve the temporary injunction then in force, and also to modify it, which motion was overruled on said 26th day of October, 1903. On November 9, 1903, in term, the defendants again moved the court to dissolve said temporary injunction. Their motion was overruled, and, on the application of the plaintiff, the cause was continued until the next term for the closing of the issues and for service of process on the defendant John C. Howard. November 12, 1903, the defendants the Baden Lick Sulphur Springs Company and George S. Gagnon prayed an appeal from the several interlocutory orders, judgments, and decrees of the court in this cause. The appeal was granted, time was allowed for filing bills of exceptions, the amount of the appeal bond was fixed at $500, and it was required to be filed during the current term of the court. Said bond was filed and approved November 13, 1903.

An appeal to the Supreme Court may be taken from an interlocutory order of any circuit court or judge thereof granting or dissolving or overruling motions to dissolve an injunction in term and granting an injunction in vacation. Clause 3, § 658, Burns' Ann. St. 1901. The appeal must be taken at the term of court at which the order is made; or, when made in vacation, it must be taken at the time the order is made or during the next term. No appeal can be granted until the party desiring to appeal has filed an appeal bond, as in other cases of appeal. Section 659, Burns' Ann. St. 1901. The decisions complained of and assigned for error are the overruling of the motion to dissolve the temporary injunction of October 26, 1903, the overruling of the motion to modify the injunction of October 26, 1903, the overruling of the motion to dissolve the injunction of October 26, 1903, and the granting of the temporary injunction of August 3, 1903.

It is objected by counsel for appellee that the appellants cannot bring before this court in a single appeal more than a single interlocutory order granting an injunction or overruling a motion to dissolve an injunction. As all the orders appealed from were made in the same cause, and the appeal as to each decision complained of was taken within the time prescribed by the statute, we think that all such orders are properly included in a single appeal. Upon an appeal from an interlocutory order granting or refusing to modify an injunction, it is not necessary that such a case should be made out as would entitle the plaintiff to relief at the final hearing. It is sufficient if the court finds upon the pleadings and evidence such a state of facts as makes the transaction a proper subject for investigation in a court of equity. Spicer v. Hoop, 51 Ind. 365: The People's Gas Co. v. Tyner, 131 Ind. 277, 283, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St Rep. 433;Home, etc., Co. v. Globe Tissue Paper Co., 146 Ind. 673, 679, 45 N. E. 1108. Is this such a case? The French Lick Springs Hotel Company owns some 550 acres of land situated in a valley 2 1/2 miles long by three-fourths of a mile wide, known as “French Lick Valley,” in Orange county, in this state. A group of springs, known as the “French Lick Springs,” possessing healing and medicinal properties in a high degree, is situated on the lands of the appellee. The Baden Lick Company is the owner of 80 acres of land situated to the north and northeast of the lands of the French Lick Company, and adjoining the same. John C. and John L. Howard own a tract of land extending from the hilltops to the northeast of French lick Springs down into said valley and to a point about 85 rods distant from the northeast corner of the lands owned by said French Lick Company. The waters flowing from the springs known as the French Lick Springs had for more than 30 years been known throughout the United States to possess healing and medicinal properties, and during that time had attracted many visitors to said valley from all parts of the United States, who came to drink and bathe in such waters. During all that time a hotel and health and pleasure resort had been maintained near said springs, which was added to and improved from time to time to accommodate the increasing number of guests attracted there by reason of the properties of said springs, which were natural flowing springs. On and before June 25, 1901, this hotel property, consisting of certain frame hotel buildings, the lands aforesaid, and the natural springs thereon, was owned by said French Lick Springs Company, of which corporation John L. Howard and John C. Howard, parties to this action, were stockholders, the said John C. Howard being an officer thereof. On the date last named the said French Lick Springs Company sold said property to the appellee corporation, the French Lick Springs Hotel Company, receiving therefor the sum of $385,000, which was the fair cash value thereof, but that without said springs the fair cash value of said property would not have exceeded $20,000; the said appellee corporation being induced to make said purchase and investment solely on account of the existence of said springs, their wide reputation, and the fact that so many guests were attracted thither by reason of their widely known medicinal properties. The appellee corporation, immediately upon taking possession of said property, began the erection of and has completed new hotel buildings thereon at an expense of $140,000, and made other improvements thereon at an additional expense of $125,000, and said property is now of the value of $1,000,000, which value depends upon the continued existence of the said springs.

The overflow waters from said natural springs on the lands of the French Lick Company run from said springs in a well-defined channel, with bed and banks, forming a surface stream through which said waters are carried to and emptied into French Lick creek. Underlying all the land in the said French Lick valley is a subterranean body of water, and the waters in the natural springs of the French Lick Company are forced upward through the rocks by the hydrostatic pressure of said body of water, and for more than 30 years said springs have had a natural flow resulting from said pressure. Within a year prior to the bringing of the action, the Baden Lick Company and the Howards have each sunk a well on their respective tracts of land in said valley for the purpose of tapping the body of...