New Jersey, Indiana & Illinois Railroad Company v. Tutt

• Decision Date: 26 February 1907
• Docket Number: 20,857
• Court: Indiana Supreme Court
• Parties: New Jersey, Indiana & Illinois Railroad Company v. Tutt et al

80 N.E. 420

168 Ind. 205

New Jersey, Indiana & Illinois Railroad Company v. Tutt et al

No. 20,857

Supreme Court of Indiana

February 26, 1907

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Condemnation proceeding by the New Jersey, Indiana & Illinois Railroad Company against Joseph D. Tutt and others. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Meyer & Drummond, for appellant.

Anderson DuShane & Crabill, for appellees.

OPINION

Hadley, J.

This was a proceeding by appellant to condemn a right of way for a steam railroad over the lands of appellees. Appellant filed an instrument of appropriation in the office of the clerk of St. Joseph county, on June 18, 1904. On July 9, 1904 appraisers were duly appointed to assess the damages, who estimated the same at $ 491, and filed their award with the clerk, July 27, 1904. August 3, 1904, appellees filed their exceptions to the award. Upon these exceptions the proceedings were transferred to the St. Joseph Circuit Court. The question of damages raised by the exceptions was submitted to the jury October 17, 1904, which body returned a verdict for $ 1,750. Over appellant's motion for a new trial the court rendered judgment upon the verdict, from which this appeal was taken.

The record shows that the appellees are the owners of four forty-acre tracts of land, three forties lying north and south, and the fourth lying immediately west of the north forty, thus giving the whole tract an "L" form. Appellant's railroad traverses the west and north forty near the center, in a somewhat northeasterly and southwesterly direction. The Kankakee river lies a short distance to the northwest, and most of the appellees' land and a large amount of other lands adjacent on the north, east and southeast form a part of the head-waters of said river. A short time before the commencement of these proceedings Mr. Studebaker, the owner of the lands abutting on the Kankakee river, dredged a large ditch eastwardly through his land, to the lands of Mr. Kaufman. The latter in turn, beginning at the end of the Studebaker ditch, cut a drain, six feet at the top, five feet deep, and two and a half feet at the bottom, eastwardly through his land to the southwest corner of appellees' north and west forty; thence appellees continued it, at the same size and depth, eastwardly along the entire side line of the last-named forty acres, and thence southeasterly across their other lands to the lands of Mr. Burroughs on the east, at which latter place it received, for conveyance to the Kankakee river, a large body of water collected and brought down from the east and southeast through a swale. The waters that flowed through the ditch came wholly from heavy rains or melting snows in the spring and fall, and before the construction of the ditch there was no channel of any kind across appellees' land, and in times of heavy rains the waters would spread out over the marsh and the grounds of the plaintiff, and slowly make their way to the Kankakee river. At the point where the railroad embankment crossed the ditch described, appellant put in a twenty-four-inch tile, claimed by some of the witnesses to have been set eighteen inches higher than the bottom of the ditch on the upper side. At the time of the trial the railroad was so far completed that the ties were being laid through appellees' land.

During the trial a witness was asked the following question: "Did you notice whether the tile was put in on a level with the bottom of the ditch? A. I should think it was about eighteen inches from the bottom of the ditch. The water is backed up from time to time. It was when I was there."

Appellant moved to strike out the following words of the answer: "The water is backed up from time to time. It was when I was there"--upon the ground that overflow caused by backing water was not a proper element of damage in a condemnation proceeding, because a recovery here would bar a future recovery in another action for future injury caused thereby; and for the further grounds that the damages should relate to the time of the filing of the instrument of appropriation, and that the damage for improper drainage cannot be recovered in this action because such damage grows out of negligence in construction. The real basis of many objections to the introduction of testimony is rooted in the fact that the trial of the exceptions to the award was so long delayed in the circuit court that the railroad was constructed and the witnesses afforded an opportunity to observe the actual--not imaginary--effects the construction had upon the value of appellees' land. In the course of the inquiry observation by the witnesses was often referred to, and really took the place opinion would have held if the trial had occurred before the building of the railroad, but throughout the trial, while considerable latitude was allowed appellees in referring to present conditions, all evidence relating to drainage was clearly limited to the act of appropriation, and as computable of that date.

It has been uniformly held in this State that all damage for rights taken, and resulting to the remaining lands, in condemnation proceedings, both present and prospective, which are the natural and reasonable incidents of the proposed improvement, assuming that it will be properly and legally constructed in accordance with the instruments of appropriation, must relate to the time of filing the condemnation complaint. The rule is that there can be no fresh damage without a fresh injury. Chicago, etc., R. Co. v. Hunter (1891), 128 Ind. 213, 27 N.E. 477; White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 7 L. R. A. 257, 23 N.E. 782; Sherlock v. Louisville, etc., R. Co. (1888), 115 Ind. 22, 17 N.E. 171; Indiana, etc., R. Co. v. Allen (1888), 113 Ind. 308, 3 Am. St. 650, 15 N.E. 451. As to the regularity in allowing present conditions to be referred to, in estimating the damage, we shall have occasion to consider hereafter.

The principal contention between the parties is this: Appellant maintains that the destruction or impairment of the drain described, as alleged, by building the railroad embankment across it, was the result of improper construction, and offered appellees a new and additional cause of action for damage that was not assessable in the first instance; while, on the other hand, appellees contend that, the drain being an artificial channel, prepared for the collection and conveyance of surface-water, the railroad company, by its act of condemnation, acquired the right to obstruct it, and to prevent the water that flowed therein from crossing its right of way; and that in assessing the damage resulting to the farm, once for all, it was reasonable to anticipate that the company, in the exercise of its legal rights, would obstruct the ditch, and, therefore, the prospective loss of drainage was a proper element of damage to be considered in making up the award.

This leads to the inquiry whether the ditch was such "a stream of water," or "watercourse," as the company was required to preserve and "restore to its former state." § 5153 Burns 1901, § 3903 R. S. 1881. The legal distinction between a "stream of water" and a "watercourse," if any, is shadowy and unsubstantial, and for our purpose it is enough to say that if the drain herein described was not a watercourse it was surely not a stream of water. Was it a watercourse within the meaning of the law? A "watercourse" is a channel cut through the turf by the erosion of running water, with well defined banks and bottom, and through which water flows, and has flowed immemorially, not necessarily all the time, but ordinarily, and permanently for substantial periods of each year. Weis v. City of Madison (1881), 75 Ind. 241, 253, 39 Am. Rep. 135; Rice v. City of Evansville (1886), 108 Ind. 7, 58 Am. Rep. 22, 9 N.E. 139; Board, etc., v. Wagner (1894), 138 Ind. 609, 38 N.E. 171; Mitchell v. Bain (1895), 142 Ind. 604, 42 N.E. 230; New York, etc., R. Co. v. Speelman (1895), 12 Ind.App. 372, 380, 40 N.E. 541; Maxwell v. Shirts (1901), 27 Ind.App. 529, 87 Am. St. 268, 61 N.E. 754. "For a watercourse," says Justice Brewer, in Gibbs v. Williams (1881), 25 Kan. 214, 37 Am. Rep. 241, "there must be a channel and a bed to the stream, not merely lowland or a depression in the prairie over which water flows. It matters not what the width or depth may be, a watercourse implies a distinct channel, a way cut and kept open by running water."

In Case v. Hoffman (1898), 100 Wis. 314, 72 N.W. 390, 74 N.W. 220, 75 N.W. 945, 44 L. R. A. 728, it is held that mere surface or percolating water does not become a watercourse by being gathered into a ditch and conveyed away and that such surface currents as do not follow a designated and known channel are not governed by the rules relating to watercourses. The same court further held that the same line of discharge of water, in times of heavy rains and melting snows, from a pond created by the natural assembling of surface-water, did not constitute a watercourse, either when occupying the surface or when artificially lowered. Fryer v. Warne (1871), 29 Wis. 511, 515. Beyond question it is the law of this State that an artificial channel, constructed solely for expediting surface drainage, and which is employed but occasionally and temporarily in collecting and carrying away storm and surface-waters, such waters, only, as proceed from heavy rains or melting snows, is not a watercourse within the meaning of § 5153, supra. There is no reasonable dispute but that the ditch in controversy was one of this class. It was fed by no spring or watercourse. It contained and carried water only in the wet...