Over v. Dehne

• Citation: 38 Ind.App. 427,75 N.E. 664
• Decision Date: 10 October 1905
• Docket Number: No. 5,382.,5,382.
• Parties: OVER v. DEHNE.
• Court: Indiana Appellate Court

38 Ind.App. 427

75 N.E. 664

OVER

v.DEHNE.

No. 5,382.¹

Appellate Court of Indiana, Division No. 2.

Oct. 10, 1905.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Charles Dehne against Ewald Over. From a judgment for plaintiff, defendant appeals. Affirmed.Austin F. Denny, for appellant. Kealing & Hugg, for appellee.

WILEY, C. J.

Appellee sued appellant to recover damages resulting from fire alleged to have been communicated to his dwelling from appellant's foundry, and to enjoin appellant from continuing to operate his foundry and “cupulo” so as to interfere with the comfortable enjoyment of his premises. The complaint was in a single paragraph, to which an answer in six paragraphs was addressed. Reply in denial. Upon the issues thus joined, trial was had by the court, resulting in a general finding and judgment for appellee. Appellant's motion for a new trial was overruled. By his assignment of errors he questions the sufficiency of the complaint, and attacks the action of the court in overruling his motion for a new trial. In his complaint appellee avers that for many years he has owned, and still owns, certain real estate, upon which is a dwelling house, which he occupies as a residence; that appellant also owns certain real estate, upon which he has erected, owns, and operates a foundry; that as a part of said foundry, appellant constructed a brick “cupulo” about thirty feet north of appellee's house; that appellant uses said “cupulo” almost every day, from one and a half to two hours, in which to melt iron; that he uses wood, coal, and coke in the operation of the same; that chunks of burning wood fly from the “cupulo” in all directions, and, except when the wind is from the south, the sparks, pieces, and chunks of burning wood are carried upon appellee's premises, and frequently upon his dwelling; that his dwelling has caught fire therefrom four times within the past two years, and whenever said “cupulo” is in operation, his dwelling is in constant and imminent danger of being destroyed by fire; that pieces of burning wood and cinders from the “cupulo” have fallen on the roof of his house in large quantities, have filled the down spouting more than twice in the past six months, and he has been compelled to clean out said spouting frequently; that he obtains rain water for use in his house by its being carried from the roof through the down spouting into a cistern, and by reason of said facts he is unable to so obtain rain water, and that he is put to great inconvenience and damage on account thereof. It is further charged that, when said “cupulo” is in operation and the doors and windows of his residence are open, the sparks and cinders therefrom are carried into his house, and the house is filled with smoke coming from the “cupulo,” which is offensive and injurious to the health of himself and family. It is also charged that appellant could so arrange and operate his “cupulo” in a manner that the sparks, smoke, ashes, and chunks of burning wood will not be carried upon and into his dwelling, and constantly expose him and his family to danger, annoyance, and injury, and his property to constant danger of destruction by fire. That by reason of these facts appellee's comfortable enjoyment of his home has been and is constantly interfered with, and the value of his real estate for a residence and for rental purposes has greatly depreciated. That his residence, when said “cupulo” is in operation, is in constant and imminent danger of being damaged and destroyed by fire, and that he has been damaged by the fires caused by reason of the same, as aforesaid, etc. That appellant is continuing, is threatening to and will continue, to operate the same in the same manner. That appellee has been damaged by reason of the facts aforesaid in the sum of $500, and the continuance of the same will do him irreparable damage. Prayer for damages and injunction.

The complaint is attacked for the first time in this court. Counsel for appellant in his brief says: “The appellant has no supreme confidence that his first assignment of error, referred to in the caption, is well taken. But sometimes a court of appeals sees points and decides cases upon points not seen nor mentioned by the parties.” No tenable objections to the complaint are pointed out. The rule is a familiar one that, where a complaint is tested for the first time on appeal by an assignment of error, it will be held sufficient if it states facts sufficient to bar another action. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147;Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831;Cummings v. Girton, 19 Ind. App. 248, 49 N. E. 360. The complaint in this case comes within this rule, and hence must be held sufficient.

It has been stated in this opinion that but two questions are presented by the assignment of error. It is due counsel for appellant, however, to say that an application was made and granted for leave to file an amended or additional assignment of error, and in pursuance thereto 16 additional specifications of error were filed. While some of these, and possibly all, might be proper reasons for a new trial, under our practice, they are not recognized as proper assignments of error.

In his motion for a new trial appellant assigned 28 reasons therefor. The second, third, fourth, fifth, sixth, eighth, ninth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth reasons so assigned are not known to the Code, and do not present any question for decision. The first and seventh reasons may be considered together, as they present the statutory reasons for a new trial that the decision of the court is not sustained by sufficient evidence and is contrary to law, and both depend for their determination upon the evidence. The tenth, eleventh, twelfth, and thirteenth reasons present the question of excessive damages, and may be considered together. The remaining reasons predicate error of the trial court in admitting and rejecting and refusing to strike out certain evidence. These will be considered in the order of their discussion in the briefs.

The evidence shows without conflict that appellant had owned and operated his foundry for 20 years, and that appellee had owned and occupied his property adjacent thereto for more than 20 years. While so owning and operating said factory, the evidence also shows that for more than 20 years prior to February, 1901, no fire had occurred to the damage of appellee's property. The fires that damaged appellee's property occurred since 1901, and within two years from the commencement of this action. There is no positive or direct evidence that the fires were occasioned by sparks or burning chunks of wood falling upon appellee's house from the “cupulo,” for no witness testified to that fact.

Upon the evidence it is contended by appellant that the decision is not supported by sufficient evidence and is contrary to law for two reasons: (a) Because the evidence shows that appellant had acquired a prescriptive right to so operate his foundry, and (b) because the evidence fails to show that the damage to appellee's property was caused by fire communicated to it from the “cupulo.” The complaint proceeds and the trial was had upon the theory that the “cupulo” and the manner of operating it constituted a private nuisance; for it is alleged in the complaint that the “defendant can so arrange and operate his said ‘cupulo’ in a manner that said sparks, smoke, ashes, and chunks of burning wood will not be carried upon, into, and through his house, as aforesaid, constantly exposing him and his family to danger and injury, as aforesaid, and his property to constant danger of destruction by defendant's operation of his said ‘cupulo.”’ The theory, as above stated, is manifest, as shown by the evidence and the rulings of the trial court. For more than 20 years prior to 1901 no complaint is made of the manner in which the “cupulo” was operated. The evidence clearly establishes the fact that since that time the manner in which the “cupulo” was operated constituted a private nuisance, and greatly interfered with appellee's occupancy and enjoyment of his property. The injury thus caused was a continuing one, and the nuisance was also a continuing one.

Appellee sought to recover damages caused by three...