Maxwell v. Shirts

• Citation: 61 N.E. 754,27 Ind.App. 529
• Parties: MAXWELL et al. v. SHIRTS et al.
• Decision Date: 31 October 1901
• Court: Indiana Appellate Court

27 Ind.App. 529

61 N.E. 754

MAXWELL et al.

v.SHIRTS et al.

Appellate Court of Indiana, Division No. 1.

Oct. 31, 1901.

Appeal from circuit court, Boone county; B. S. Higgins, Judge.

Action by Augustus F. Shirts and others against James D. Maxwell and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed in part.W. V. Rooker, for appellants. Shirts & Baldwin, for appellees.

ROBINSON, J.

Action by appellees for damages and injunction. Complaint in two paragraphs, demurrers to which were overruled. Trial by court, with special finding of facts and conclusions of law. Appellants' joint and several motions for new trial overruled, and judgment and decree in appellees' favor. Errors assigned question the rulings on the demurrers and the motions for a new trial; also the correctness of the conclusions of law.

The complaint avers, in substance, that appellees and appellant Rooker own lands adjoining; that upon appellant's land are two ravines, from the banks of which and into which water flows from springs throughout the year; that these ravines come together upon appellant's land, and that the natural outlet for the water is in a depression or pond on appellant's land, and that none of the waters from this branch flow naturally upon appellees' land, except in time of overflow; that appellants have, without right, wrongfully constructed a dam on appellant Rooker's land across this branch, whereby the water is prevented from following its natural course and running on appellant's land, but causing the water to leave its natural course and run onto appellees' land, rendering the same unfit for cultivation; that appellants are threatening to continue the dam, and to turn the water from its natural course upon appellees' land; also averring damages. The complaint states sufficient facts to constitute a cause of action. It proceeds upon the theory that appellants have wrongfully diverted a natural water course from their own land upon the land of appellees, to their damage. The complaint designates the stream of water as a “water course,” which has been defined by the courts to be a stream of water ordinarily flowing in a certain direction, through a defined channel, with bed and banks. Weis v. City of Madison, 75 Ind. 241, 39 Am. Rep. 135. Whether the stream here in question will come within this definition is a matter of proof. If the wrongful diversion of a natural water course has produced injury, there is a liability. It has been held that the size of the stream is not material, and that if the water has a definite course, “as a spring or springs, and takes a definite channel, it is a water course, and no person through whose land it flows has any right to divert it from its natural channel so as to injure another landowner.” Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230:Gillett v. Johnson, 30 Conn. 392;Case v. Hoffman, 84 Wis. 438, 54 N. W. 793, 20 L. R. A. 40, 36 Am. St. Rep. 937;Pyle v. Richards, 17 Neb. 182, 22 N. W. 370;Macomber v. Godfrey, 108 Mass. 219, 11 Am. Rep. 340;Road Co. v. Harvey, 90 Ind. 192, 46 Am. Rep. 199;Drake v. Schoenstedt, 149 Ind. 90, 48 N. E. 629.

The facts found are: That appellees own certain described lands, and east and north thereof and adjoining are the lands of appellant Rooker. A little west of south from the northeast corner of appellees' land is a pond or basin covering from three to five acres, and west of north of the same corner is a like basin or pond on appellant's land from two to five acres in extent. These ponds are about 15 rods apart, and have no natural channel or connection between them; there being a ridge about 2 1/2 feet high separating them. In 1893 appellees drained the pond on their land, which ditch was and is sufficient to carry away all the water that naturally collects in the pond, and after such drainage, until 1897, the land was cultivated. That north of east from the northeast corner of appellees' land, and upon appellant's land, are two ravines, along which are springs which flow therein, which ravines unite on appellant's land, and form one stream, which flows in a westerly direction over appellant's land and into the Rooker pond. That this branch flowed continuously throughout the year in a well-defined channel and emptied into the pond in which there was water throughout the year. That no water from this spring branch has at any time naturally flowed upon and over appellees' land, and that no water from the Rooker pond has ever flowed onto appellees' land, except in times of overflow from White river. Facts are also found to show that on different occasions, beginning in 1883, the then owner of the Rooker land undertook to divert the channel of this branch by means of ditches and dams so that the water would flow into the pond on the land now owned by appellees, but that such changes were made without the knowledge or consent of the persons then owning the land now owned by appellees, and that such owners would cut the dams and fill the ditches so as to turn the water into the original channel that ran into the Rooker pond, and two different times the water broke through the embankmentthat had been made to prevent the water flowing into the Rooker pond and made new channels, and the water flowed through these channels into the Rooker pond, and continued to flow through the last channel so made until about 90 days before the bringing of this action,...