Moellering v. Evans, 13,941

• Docket Nº: 13,941
• Citation: 22 N.E. 989, 121 Ind. 195
• Case Date: November 26, 1889
• Court: Supreme Court of Indiana

22 N.E. 989

121 Ind. 195

Moellering
v.
Evans

No. 13,941

Supreme Court of Indiana

November 26, 1889

From the Allen Circuit Court.

Judgment reversed, at costs of appellee, with instructions to sustain the motion for a new trial.

T. E. Ellison, for appellant.

R. C. Bell and S. R. Morris, for appellee.

OPINION

[121 Ind. 196] Olds, J.

This is an action by the appellee against the appellant for damages caused to certain lots owned by the appellee by reason of the excavation of the lands adjacent thereto by the appellant, permitting appellee's lots to cave, and causing the destruction of his fences and barn upon the lots, and greatly depreciating the value of the lots.

Issue was joined on the complaint by general denial, and a trial had, resulting in a verdict and judgment in favor of appellee against the appellant for $ 300.

There was a motion for a new trial by the appellant which was overruled and exceptions taken, and the ruling is assigned as error.

The first error presented and discussed is sustaining an objection to a question propounded to appellee while testifying as a witness in his own behalf.

The appellee was recalled as a witness, and was asked on examination in chief, and testified as to the date he had sold one of the lots that he sold it in October, 1886, and that the principal part of the earth which had caved, or slipped off from the lot, had slid off before he sold the lot; that a large quantity of the dirt right under the stable dropped off, or fell off. During the course of the cross-examination the counsel for appellant put the following question to the witness: "Don't you know that could be filled in there for twenty-five cents a yard?" There was an objection to the question and the objection sustained, and exceptions taken at the time.

There was no error in this ruling. The witness was recalled to fix the date of the sale of the lot, and to testify as to whether the injury to the lot had occurred before or after the sale. The witness had not testified on such examination as to the amount of earth which had slid off prior to the sale, nor as to the amount of the damage done. The witness had [121 Ind. 197] been upon the witness-stand and been examined in chief, and fully cross-examined, and was recalled to testify to these particular facts, and it was proper to limit the cross-examination to the particular matter testified to by the witness when recalled, and the question propounded did not relate, and was not germane to the matter of which the witness spoke in his examination in chief.

The next question discussed is the giving and refusal of instructions by the court.

The court gave the following instructions:

"1st. There is incident to land in its natural condition, a right to support from the adjoining land; and if land not subject to artificial pressure, sinks or falls away in consequence of the removal of such support, the owner is entitled to damages to the extent of the injury sustained. The measurement of damages in such case is not the cost of restoring the land to its former condition or situation, or of building a wall to support it, but it is the diminution in value of the plaintiff's land by reason of the acts of the party removing the...