McAllister v. Henderson

• Decision Date: 16 May 1893
• Parties: McALLISTER v. HENDERSON.
• Court: Indiana Supreme Court

134 Ind. 453

34 N.E. 221

McALLISTER

v.HENDERSON.

Supreme Court of Indiana.

May 16, 1893.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.

Action by Marshall J. McAllister against Andrew J. Henderson to restrain defendant from destroying a ditch, and to quiet plaintiff's title to an easement to flow water through defendant's land. Judgment for defendant, and plaintiff appeals. Reversed.

Thos. F. Davidson and Jere West, for appellant. Crane & Anderson, for appellee.

OLDS, J.

This is an action by the appellant against the appellee to enjoin the obstruction of a certain tile ditch, commencing at a pond on the land of the appellant, and terminating on the land of the appellee, which had been constructed, by agreement of the parties owning the land at the time of its construction, for the purpose of draining their land, and subsequent grantees purchased with knowledge of the drain. The complaint alleges the facts showing that the parties were adjacent landowners, and that, for the purpose of draining certain of their land through and along the natural outlet for the water to flow, it was mutually agreed between them that they should construct a tile drain, each constructing that portion which was located on his own land respectively, commencing at the pond upon the land of the appellant, and extending to and upon the land of the appellee, and then terminating in an open drain, where it had an outlet, and that they did so construct the said drain at a large expense to each of them; that appellee had without right dug up and taken out the tile to the distance of a few rods of the ditch on his own land, and near to appellant's land, and filling it in with earth, thereby obstructing the ditch, and stopping the flow of water, causing the water to back up and overflow appellant's land and render the land, otherwise good for cultivation, entirely worthless for such purposes. It is further formally alleged that the appellant has an easement in the land of the appellee through which the ditch passes, which consists in the right to flow water through said drain, which appellee denies, and casts a cloud upon appellant's title thereto. Prayer for quieting the title to his easement, for a mandatory injunction requiring the appellee to restore the ditch to its original condition, and that he be enjoined from further interference therewith. No question is presented as to the sufficiency of the complaint. To the complaint the appellee answered in two paragraphs-First, in denial; and, second, as follows: “For a second and further paragraph of answer herein, defendant says that he admits that in the year 1877, one Atwell Mount, the then owner of the lands now owned by defendant, constructed a tile drain of six-inch tile from the south line of his said land to the point near to the barn as alleged in the complaint, and he avers that said tile drain so constructed was sufficient to carry off of defendant's land all surface water which naturally flowed upon said land and made said land susceptible of cultivation. That afterwards, in the following year, plaintiff's grantor, Jesse McAllister, constructed a tile drain on his land from the pond mentioned in the complaint to the south end of said Atwell Mount's drain, and joined and connected the same thereto, making a continuous drain from said pond to said point near to said barn. That after the construction of said drain by said Jesse McAllister, the tile drain on defendant's land was sufficient to and did carry all the surface water that it had theretofore carried, and in addition thereto the water discharged by said McAllister's drain, but said water taxed said drain to its utmost capacity. That afterwards, to wit, in the year 1887, plaintiff's grantor, Jesse McAllister, without the knowledge or consent of the defendant or his grantor, took up his part of said drain between said pond and the drain on defendant's said land, and lowered the same about two feet, so as to more effectually drain said pond and his said land, and constructed on his said land about two hundred rods of lateral drain draining into his said drain and into said pond, as a sort of catch basin, a large amount of water that did not naturally or before that time flow into said pond and into said drain. That the drain on defendant's land was not sufficient to carry off the large amount of water thus thrown into it by the lowering of said drain on plaintiff's land, and the construction of said lateral drains, and, by reason of said water being thus cast into his said drain, the same was rendered useless to him and to his said land, and his said land was overflowed, and a large part thereof rendered unfit for cultivation. That in order to reclaim his said land, and enable his said drain to carry the surface water from said land as it was originally intended to do, and as it had done prior to the acts of the plaintiff and his grantor in lowering their said ditch and constructing said lateral drains and throwing additional water into defendant's said ditch, defendant took up a rod and a half of his said tile and filled the ditch in as alleged in the complaint. That before defendant took up said tile and filled in said ditch, he notified plaintiff and plaintiff's grantor that the lowering of said drain and the construction of said lateral drains and the consequent pouring into his drain of the additional water rendered his drain useless to him, and rendered his lands wet and unfit for cultivation, and asked plaintiff to relieve him and his said lands of this burden, but plaintiff refused to do so. Wherefore defendant asks judgment for costs.” To the second paragraph of answer the appellant filed a demurrer, which was overruled, and exceptions reserved, and this ruling is assigned as error. By this ruling the question is presented as to whether the appellant is entitled to the relief sought under the facts as shown by this answer. It shows a state of facts, more briefly stated, as follows: The owners of the land, by agreement, constructed a tile drain from a pond on the land owned by the appellant, extending onto and having an outlet on the land owned by the appellee, to drain the water from the lands of the two parties which naturally flowed into and through the drain so constructed. The ditch as constructed was sufficient to and did carry off the water naturally...