Newton v. Lyons

• Decision Date: 21 March 1950
• Docket Number: No. 17960,17960
• Citation: 120 Ind.App. 465,90 N.E.2d 917
• Parties: NEWTON v. LYONS et al.
• Court: Indiana Appellate Court

Page 917

90 N.E.2d 917

120 Ind.App. 465

NEWTON v. LYONS et al.

No. 17960.

Appellate Court of Indiana, in Banc.

March 21, 1950.

Roscoe D. Wheat, Portland, James W. Grimes, Portland, for appellant.

James P. Dunn, Union City, Ernest M. Dunn, Union City, for Elijah Lyons and Minnie Lyons.

BOWEN, Judge.

This is an appeal from a judgment for appellees, plaintiffs below, in an action for damages and for the abatement of an alleged nuisance consisting of an alleged obstruction of a culvert under a roadbed.

Errors assigned for reversal are; that the court erred in overruling the appellant's demurrer to the first and second paragraphs of the complaint; that the court erred in the first, second, third, and fourth conclusions of law; that the court erred in overruling appellant's motion for judgment at the conclusion of the evidence offered by appellees; and, that the court erred in overruling appellant's motion for a new trial. Grounds of the motion for a new trial are that the decision of the court is not sustained by sufficient evidence and is contrary to law, and that the assessment of the amount of recovery was too large.

Since the facts contained in the findings are substantially the same as those in the pleadings, the same questions are presented by appellant's exceptions to the lower court's conclusions of law, therefore, the first assigned error in the overruling of appellant's demurrer to the first and second paragraphs of complaint, if erroneous, is rendered harmless. Scanlin v. Stewart et al., 1894, 138 Ind. 574, 37 N.E. 401, 38 N.E. 401; City of Huntington et al. v. Sonken, 1929, 89 Ind.App. 645, 165 N.E. 449; Fry v. Hare, 1906, 166 Ind. 415, 77 N.E. 803.

From the record and the findings of the court which were supported by the evidence it appears that the appellant owned land immediately south of the farm of the appellees and south of a county highway; that more than ten years ago a 12-inch tile drain was placed on the real estate of the appellant from a point directly south of a 24-inch culvert running under the highway, and running across the lands of appellant into an open ditch into which it emptied. That because of overflow water some 25 rods of said 12-inch tile immediately south of the highway right-of-way were washed out and said tile drain was destroyed. That appellant Fred Newton and appellee Lyons and five other landowners entered into an agreement whereby they would furnish the 12-inch tile drain and cost of labor in replacing them in said drain when the former tile had been washed out over and in the lands of appellant, and appellee Lyons paid one sixth of the costs thereof. Said tile was in no way connected with the 24-inch culvert under the roadbed of said county highway.

That the general slope and course of the natural watershed over and across the lands of appellees was from the northeast and toward the south, and that water and drainage originated on appellees' land naturally flowed off of said lands and through the 24-inch culvert under the county highway; that many years previous a 10-inch tile was placed over and across the lands of appellees, which tile extended from the northeast boundary of the lands of appellees to a point on the south side of appellees' land where said tile drain emptied into the side ditch on the north side of the county highway of Jay County, Indiana, which was controlled and repaired by the Jay County Highway Department; that between the 10-inch tile and the 24-inch culvert, a T tile twenty-four inches in diameter was connected with the 10-inch tile but did not connect with the 24-inch culvert, thereby allowing additional surface water to enter the 24-inch culvert on the north side of the roadbed. That on the south side of the highway and 24-inch culvert, an agent of the Jay County Highway delivered a 12-foot metal sewer pipe twelve inches in diameter; that appellant Newton placed this metal sewer pipe in the ditch by placing one end at the south end of the 24-inch culvert under the highway and the other end in a 14-inch tile and he connected the pipe with the 12-inch tile drain which crossed his lands; that the appellant covered the opening where the metal pipe connected with the culvert with pieces of tile and then cemented and caused the same to be closed or sealed and thereby reduced the 24-inch culvert to a diameter of twelve inches at the south outlet of said culvert in said highway right-of-way; that at times of normal heavy rains, the 24-inch culvert was not sufficient to carry off the water from the lands of appellees and the north side of the highway by reason of the obstruction and reduction of size of the outlet of such culvert, and the water was held back and carried through the 10-inch tile on appellees' land and through a 4-inch tile into appellees' basement.

The lower court held that the appellant Newton had no right to so construct the obstruction as to cause water to back upon the lands of appellees, and that such obstruction constituted a nuisance, and allowed damages of $50.00 to appellees, and ordered the abatement and removal of the so-called obstruction at the south end of the 24-inch culvert. The court found that the defendant Highway Department of Jay County, Indiana, was only the name of an agency of the County of Jay, acting by and through its Board of Commissioners, and by its judgment, found for the Jay County Highway Department and that it have judgment for costs.

One of appellant's main contentions is that...