Hill v. Cincinnati, W. & M. Ry. Co.

• Decision Date: 16 February 1887
• Citation: 109 Ind. 511,10 N.E. 410
• Parties: Hill and others v. Cincinnati, W. & M. Ry. Co.
• Court: Indiana Supreme Court

109 Ind. 511

10 N.E. 410

Hill and others

v.Cincinnati, W. & M. Ry. Co.

Supreme Court of Indiana.

February 16, 1887.

Appeal from circuit court, Grant county.

Kersey & Baldwin, for Hill and others, appellants. C. E. Cowgill, for Cincinnati, W. & M. Ry. Co., appellee.

NIBLACK, J.

Action by Joseph W. Hill and Zimri S. Richardson against the Cincinnati, Wabash & Michigan Railway Company, for obstructing the flow of water from their lands. The complaint averred that the plaintiffs were the owners of a tract of land in Grant county; that, more than 30 years before the commencement of this suit, the falling rains and melting snow had formed a natural channel upon said tract of land, through which the accumulating waters had been accustomed to flow; that the railway company, by the erection and continuance of an embankment, had caused such flow of water to be obstructed at three distinct points, from which serious damage had resulted to the plaintiffs. A trial resulted in a verdict for the defendant, with answers to special interrogatories to the effect following: First, that the surface of ground through which the water resulting from rain and snow found their way out of the first point at which it was claimed that the railway company had obstructed the flow was about 15 acres; second, that the surface of ground at the second point from which it was claimed the flow of water had been obstructed amounted to about 7 acres; third, that the surface of ground drained at the third alleged point of obstruction amounted to about 11 acres; fourth, that, except at the points named, there was no other place for the waters accumulating on said tract of land to escape; fifth, that the water turned back upon the land of the plaintiff was mere surface water, resulting from rains and snows falling upon adjacent lands, shedding towards the railway at the three points named. A motion for a new trial being first refused, judgment was given upon the verdict.

Although various questions were reserved during the progress of the proceedings below, the only question made in argument here is upon the alleged error of the circuit court in its instructions to the jury. The circuit court told the jury, among other things, that a water-course is a stream of water ordinarily flowing in a certain direction, through a defined channel, with bed and banks, and that there is a broad distinction between a stream of water and those occasional outbursts of water which, in times...