Hinesley v. Crum

• Decision Date: 14 December 1910
• Docket Number: 21,581
• Citation: 93 N.E. 274,175 Ind. 10
• Parties: Hinesley et al. v. Crum et al
• Court: Indiana Supreme Court

93 N.E. 274

175 Ind. 10

Hinesley et al. v. Crum et al

No. 21,581

Supreme Court of Indiana

December 14, 1910

From Clinton Circuit Court; Joseph Combs, Judge.

Drainage petition by Silas W. Crum and another, against which Daniel Hinesley and others remonstrate. From a judgment for petitioners, remonstrants appeal.

Affirmed.

Joseph Claybaugh and Guenther & Clark, for appellants.

Thomas M. Ryan and James V. Kent, for appellees.

OPINION

Monks, J.

This proceeding was brought by appellees in the court below, under section nineteen of the drainage law of 1907 (Acts 1907 p 501, § 6174 Burns 1908), for the purpose of changing improving and extending a certain drain already established by tiling and covering the existing drain, and changing the line thereof wherever it might be necessary to make an effective drain, etc.

It appears from the record that there has been a public drain established and constructed, commencing on what is known as the "Stoms land," and extending thence in a northwesterly direction a distance of two miles, or over, to Middlefork creek. The first proceeding was commenced by appellant Hinesley in 1873, in which a part of said drain was established and constructed. In 1877 he brought another proceeding, whereby the drain of 1873 was extended south on the Stoms land, and was continued a few feet farther north. In 1883 a drain was established and constructed along the line of said ditch constructed in 1877, commencing at the south side of the Stoms land and extending to a highway running east and west, known as the Middlefork gravel road. At a later date a public drain was established, commencing at said gravel road at the end of the drain of 1883, and extending in a northwesterly direction to said Middlefork creek. In 1886 appellant Hinesley, on that part of his land adjoining the Stoms land on the north, together with the owners of the land above him, placed tile in the bottom of said drain, and made a blind or closed drain of it. A short time afterwards the tile was extended north, then west across a north-and-south highway to a point on the land of one Bosworth.

By this proceeding it is proposed to tile and otherwise improve said public drain, commencing at the end of the tiling on the Bosworth land and extending thence down said drain 7,300 feet, and also to tile a branch or lateral drain for about 1,300 feet. The petition was referred to the drainage commissioners. Afterwards the drainage commissioners filed their report, which was in favor of said improvement.

Appellant Hinesley filed his separate remonstrance against said report and against each of the assessments of benefits against each of his tracts of land. Appellants other than Hinesley also filed separate remonstrances against each assessment of benefits against each tract of land. To these remonstrances appellees filed a general denial.

A trial by the court resulted in a finding against each appellant on each ground of remonstrance. Appellant Hinesley filed a separate motion for a new trial. Appellants other than Hinesley also filed separate motions for a new trial. These motions were overruled, and judgment was rendered approving and confirming the assessments of benefits against each appellant, and establishing the proposed work. The only errors assigned call in question the action of the court in overruling said motions for a new trial.

The following causes for a new trial are assigned in each motion, and are urged as grounds for reversal: "(1) The finding of the court is not sustained by sufficient evidence, and (2) the finding of the court is contrary to law."

Appellants contend, under said causes for a new trial, that the evidence shows that said drain, from its commencement on the Stoms land to the point where it empties into Middlefork creek, was a natural watercourse before it was improved under the drainage laws of the State, and that, "being a natural watercourse, they have the right to drain their lands into and through it onto the lands of the petitioners and others, that such lands are charged with the burden of the water so cast upon them through said natural watercourse, that the servient owners are bound to take care of the water so cast upon them, and that therefore their lands are not benefited by such improvement and cannot be assessed therefor."

Said appellants further claim, under said causes for a new trial that the evidence shows that "they have for more than twenty years before this proceeding was commenced, and during all of said time, thrown the water from their lands through open and tile drains into said drain over and across the lands of the petitioners, and thereby have acquired and gained such right by prescription, and therefore their lands are not subject to any assessment of benefits for the making of said...