Hamilton v. City of Shelbyville

• Decision Date: 25 April 1893
• Docket Number: 816
• Parties: HAMILTON v. THE CITY OF SHELBYVILLE
• Court: Indiana Appellate Court

33 N.E. 1007

6 Ind.App. 538

HAMILTON v. THE CITY OF SHELBYVILLE

No. 816

Court of Appeals of Indiana

April 25, 1893

From the Shelby Circuit Court.

Judgment affirmed.

D. L Wilson, T. B. Adams and I. Carter, for appellant.

A Blair, K. M. Hord and E. K. Adams, for appellee.

LOTZ J. REINHARD, C. J., not present.

OPINION

LOTZ, J.

In the year 1866, one Andrew O. Porter, owned certain lands situate within two miles of the city of Shelbyville. The said city desired to drain certain lands and lots within, and adjacent to, its corporate limits, and had instituted legal proceedings by its common council for that purpose. The projected drain extended through the lands of said Porter. The said Porter resisted such proposed encroachment on his lands, and a legal controversy was pending in the courts between him and said city. To adjust and compromise the differences existing between them, an agreement was entered into by which Porter and wife conveyed to said city a strip of land thirty feet wide, for the purpose of constructing said ditch thereon. The provision in said contract relating thereto being in these words: "Now, therefore, in the consideration of the sum of one dollar, and of the covenants hereinafter mentioned on the part of said city, and of the premises aforesaid, the said Andrew O. Porter and Anna Porter, his wife, hereby grant and convey to said city the said strip of land thirty feet wide as aforesaid, for the purpose of constructing said ditch therein, and for that purpose only, and to revert to the said grantors or their heirs, when said city shall fail and refuse longer to keep open a ditch along said line; and for and in consideration of the grant of the above described right of way for said ditch over the lands of said Andrew O. Porter, the common council of said city hereby agrees to construct said ditch within a reasonable time, of sufficient capacity to carry off the water that accumulates along the line of said ditch, and to keep the same open and in reasonable repair, and to exonerate said Porter from all expense in keeping said ditch open after the same is dug. And they hereby release him from the payment of said assessments for any benefits to said lands, and also from any expenses in digging the same, and to permit said Porter, free of all charge, to drain his lands by outlets into said ditch, constructed in such manner as not to injure the same."

The contract was duly signed and acknowledged by Porter and wife, and by the mayor of the city. Appellant afterwards, in the year 1873, by deed of conveyance from Porter and wife, became the owner of the Porter lands. The alleged breach of the above stipulation, on the part of the city, is made the foundation of appellant's cause of action.

His complaint is in three paragraphs.

The first charges that the defendant failed, neglected, and refused to keep said ditch cleaned out, so as to keep it of the dimensions as originally constructed, and that, by such failure, neglect, and refusal, he, the plaintiff, has been unable to drain his lands as he could have done had said ditch been so cleaned out; that he had no other way of draining his lands; and that, by reason of said failure on the part of said city, his lands were made wet so that the grain and grass growing upon said lands were destroyed thereby, to his damage in the sum of three hundred dollars.

The gist of the second paragraph is that the city took possession of said strip of land under said contract, "and constructed a ditch through and upon the same, and has ever since occupied said lands, and keeps said ditch partly open, and uses it for the purposes of drainage, but that said city did not construct said ditch of sufficient capacity to carry off the water in a reasonable time that accumulates along the line of said ditch, and that said city has and does fail, neglect, and refuses to so construct said ditch, clean, repair and keep the same open in such a manner as to enable him, the plaintiff, to drain his lands free of charge by outlets into said ditch;" that on account of such failure his land was made wet, and the grain and grass growing on the same were destroyed, and his land rendered unfit for the purpose of growing grain and grass, to his damage in the sum of three hundred dollars.

The third paragraph proceeds much the same as the second, but contains these additional averments: "That one, Thomas Fortune * * * filed his petition before the board of commissioners of said county, praying for the location of a ditch from his lands in the said city, to and intersecting with said ditch at a point just north of said lands of the plaintiff, and laying said ditch thence on to its outlet in said aforesaid old ditch." That said petition was granted, and said ditch established and constructed as prayed for in said petition. That since that time said city has continued to occupy and use said ditch, but has refused to repair the same, "and a valid and legal assessment was made upon his (appellant's) lands, which he has been forced and compelled to pay in the sum of $ 180, for the purpose of repairing, cleaning, and keeping open said ditch.

A demurrer for want of facts was overruled to the first and second paragraphs, and sustained to the third.

Five paragraphs of answer were filed.

Demurrers were sustained to the second, third, and fifth, and overruled to the fourth. The cause was put at issue and tried by the court. At the request of the appellant, the court made a special finding of facts, and stated the conclusions of law thereon.

The court made a finding in favor of the appellant, and rendered judgment in his favor in the sum of one dollar, and judgment for all costs in the case in favor of the appellee. Appellant made a...