WOOD
Judge.
The
appellant brought suit against the appellee by an amended
complaint, referred to hereafter as complaint, in one
paragraph to recover damages alleged to have been sustained
because of the death of one Ralph M. Millspaugh as the result
of negligent conduct on the part of appellee.
Appellee
demurred to the complaint for insufficiency of facts. This
demurrer was sustained. Appellant refused to plead further
and judgment was rendered against her that she take nothing
by her action. From this judgment appellant appeals
assigning as the only error for reversal the action of the
court in sustaining appellee's demurrer to her complaint.
The
complaint, omitting the caption, the allegations concerning
the survival of dependents of the decedent, the prayer for
judgment, and signature of attorneys, is in the following
language:
"The plaintiff complains of the defendant and for her
amended cause of action alleges:
"That the defendant is now and was at all times as
hereinafter set forth a corporation engaged in the business
of manufacturing, generating and selling electricity, and as
a part of its business, constructed dams across rivers for
the purpose of obtaining water power to operate its machinery
for generating electric current, and which current after so
manufactured and generated was sold by it to the general
public, and as a part of its business, operated a power plant
near the town of Monticello, in White County, Indiana, under
the firm name and style of
Northern Indiana Public Service Company.
"That for a time, the memory of man runneth not to the
contrary, there was a public river running North and South
through said White County known as the Tippecanoe River and
which has been for many, many years and which was at the time
hereinafter mentioned, heavily stocked with fish; that the
town of Monticello has been built along its banks, which said
banks and river at the place and point where plaintiff's
intestate was fishing as hereinafter set out, have been for a
long period of time and were at the time of the drowning of
plaintiff's intestate as hereinafter alleged, subject
altogether to a public easement and to the right of the
public to come upon said banks and river, among other things
for the purpose of boating and fishing; and running in both
directions along the banks of said river numerous cottages
have been constructed and for many years have been occupied
by persons desiring to make their summer homes therein; that
for many years said river was used by the occupants of said
cottages and others, for fishing, and as a means of catching
fish from said river, boats were used thereon.
"That more than seven (7) years ago, and prior to the
8th day of April, 1933, a dam had been constructed across
said river at a point near the town of Monticello and which
dam was commonly known as 'the old dam' and which dam
raised the level of said river and thereby made the same a
more desirable breeding ground for fish, and place to fish
in, all of which facts were known to the defendants herein,
or, by the exercise of ordinary care, could have been known
at the time, and prior, and subsequent to the time as
hereinafter set forth.
"That on or about said date the defendant herein duly
obtained permission from proper authorities to construct a
dam across said river at a point, to-wit: two and one-half (2
1/2) miles north of said dam for the purpose of raising the
water in said river so as to obtain water power to operate
its machinery for generating electricity to be sold in the
course of its business, as aforesaid. That said defendant did
construct said dam which raised the water above the old dam
and during times of rains, the old dam became completely
submerged.
"That said defendant negligently and carelessly failed,
neglected and refused to remove said old dam from said river
at the time of the completion of the new dam, as aforesaid,
but instead thereof, said defendant blasted and by and
through its lawful agents, acting within the course of their
employment, and for and on behalf of said defendant and at
defendant's instance and request, blasted a hole in the
center thereof approximately one hundred (100) feet in width,
leaving approximately one hundred forty-five (145) feet of
the old dam remaining in said river on either side of said
hole, or gap, in a rough, ragged and jagged condition. That
after the construction of said new dam, during rains and at
the time when the said river was rising, said hole or gap in
said old dam caused a suction to occur in the water flowing
through the same, causing all objects floating in said river,
including boats which passed at or near said opening, to be
slowly pulled toward said opening in said dam and the suction
created thereby, and submerged under the water, thereby
creating a dangerous obstruction to the use of said river by
fishermen and others lawfully thereon, of whom
plaintiff's intestate was one, all of which was known by
said defendant, or, by the exercise of ordinary care, could
have been known in time to have removed said old dam and
corrected said dangerous condition in said river and
prevented the death of the plaintiff's intestate, as
hereinafter alleged.
"That on the 8th day of April, 1933, plaintiff's
intestate and one William H. Martin were lawfully in a boat
fishing in said public river at a point where said river was
subject to the public easement therein for fishing and
boating, which said point was approximately two hundred fifty
(250) feet to the north of said old dam and at which point
the water ran toward the old dam, and at which point the
defendant herein does not enjoy the exclusive proprietary
and/or possessory rights in said river. That plaintiff's
intestate was ignorant and wholly unaware of the dangerous
obstruction in said river at said point caused by said hole,
or gap, in said old dam, as aforesaid. That at said time, the
river had risen above the old dam due to rains that had
theretofore fallen and said old dam was completely submerged,
thereby creating a deceptive and latent dangerous condition,
of which the defendant well knew, or by exercise of
reasonable care could have known.
"That while plaintiff's intestate and said William
H. Martin were lawfully fishing
in said river, as aforesaid, and at a point and place where
they had a lawful right to be, using due care and caution for
their safety and without any fault or negligence on their
part, the boat in which they were fishing was drawn toward
the opening in said old dam, as aforesaid, capsized, and
submerged by the suction and great pull downward exerted by
the water running through said hole, or gap, as aforesaid,
and plaintiff's decedent was thrown into said river and
drawn beneath the water, and drowned."
The
memoranda filed with the demurrer, briefly summarized, are to
the effect that at the time when appellant's decedent met
with the accident resulting in his death he was upon the
premises of appellee as a permissive licensee, and that under
such circumstances he took the premises as he found them;
that the court will take judicial notice that the Tippecanoe
river is a nonnavigable stream, therefore not a public
highway, and the decedent had no right to use it as such;
that the complaint failed to show that appellant's
decedent, either as an individual, or as one of the general
public, had acquired an easement in the waters of the
Tippecanoe river, conferring upon him the right to enter
thereupon for the purpose of boating or fishing; that the
general public could not acquire rights of fishing by grant
or prescription, which presupposes a grant, since certainty
of person as to the grantee is necessary to the validity of
such a grant, and that such a right could not be acquired by
dedication; that there was no such thing as a public easement
in the waters of a nonnavigable stream in Indiana, conferring
upon the public generally, or to an individual as a member of
an indefinite class, the right to fish in such waters; that
the amended complaint did not aver that the appellee was a
mere licensee; that a trespasser could not acquire a
prescriptive right of fishery; that the amended complaint
showed, upon its face, that the appellant's decedent was
a trespasser; that the amended complaint failed to show that
the alleged negligence of the appellee was the proximate
cause of the death of appellant's decedent.
In the
case of Cleveland, C., C. & St. L. Ry. Co. v. Gillespie,
1931, 96 Ind.App. 535, 173 N.E. 708, in which a transfer to
the Supreme Court was denied April 28, 1933, this court
summarized some of the rules defining the legal scope and
effect of the filing of a demurrer to a complaint for
insufficiency of facts under the fifth paragraph of section
2-1007, Burns' 1933, section 111, Baldwin's
Ind.St.1934, Acts 1881, Sp.Sess., c. 38, § 85, as amended by
Acts 1911, c. 157, § 2, p. 415. Our courts have further held,
under said act, that, in order to uphold a trial court in
sustaining a demurrer, the court on appeal will look beyond
the memorandum required by this section. Bruns v.
Cope, 1914, 182 Ind. 289, 105 N.E. 471.
In the
case of Greathouse v. Board of School Com'rs,
etc., 1926, 198 Ind. 95, 151 N.E. 411, 415, our Supreme
Court said:
"A demurrer for want of facts admits as true all facts
that are well pleaded, but it does not admit conclusions of
law, and does not admit all the conclusions which may be
drawn from such facts by the pleader. Such words as are the
mere expression of the pleader's opinion concerning the
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