Pence v. Garrison

• Decision Date: 30 January 1884
• Docket Number: 10,298
• Citation: 93 Ind. 345
• Parties: Pence v. Garrison et al
• Court: Indiana Supreme Court

93 Ind. 345

Pence v. Garrison et al

No. 10,298

Supreme Court of Indiana

January 30, 1884

From the Whitley Circuit Court.

M Sickafoose, W. Olds and C. B. Tulley, for appellant.

T. R Marshall and W. F. McNagny, for appellee.

OPINION

Black C.

Suit for an injunction, brought by the appellees against the appellant. In the complaint it was alleged, in effect, that the plaintiffs owned and were in possession of certain land described, in Whitley county; that through said land and the lands of divers other citizens of said county a certain drain, or watercourse, known as the Wade ditch, had been laid out and established, under the act of the Legislature of March 9th, 1875, Acts 1875, Reg. Sess., p. 97; that east of said ditch the defendant and his wife owned certain lands described, of which the defendant was in possession, which were in no way affected by the construction of said ditch and were not assessed therefor, and the defendant paid no money and furnished no work in the construction thereof, but it was constructed by other persons interested; that the plaintiff Martin D. Garrison was assessed for the construction of said ditch on account of said land of the plaintiffs, and he performed the work allotted to him thereon, and paid the money assessed against him therefor; and that the defendant had no interest in said ditch. A particular description of the Wade ditch was given, and it was alleged that upon the east and northeast thereof, on said lands of the defendant, he had about twenty-three acres of swamp land, which in the spring and fall was constantly covered with water, and had upon it at all times of the year such quantities of water as to be unfit for cultivation, and it had not been fit for either grazing or agricultural purposes, because of such accumulations of water; that said swamp land was only a part of a large tract of swamp land embracing several hundreds of acres; that the natural outlet of all said swamp lands was into Blue river, on the northwest thereof, through which outlet there constantly flowed from said swamp lands a stream of water.

It was alleged that the defendant was engaged in cutting a ditch to and into said swamp lands, with the avowed purpose of draining his said land in such a manner as to cause the water to flow from said swamp over his land and the land of another person named, into said Wade ditch, through and by means of a channel running into and connecting with the east end thereof; that the natural inclination of the land at the west end of the private ditch which the defendant was digging was such that, of necessity, the volume of water which would flow into it would pass over his land and a small tract of said other person, and thence into said Wade ditch; that between the west end of the defendant's ditch and his said swamp land, which he proposed to drain, was a high natural elevation of land, or divide, which the defendant threatened to cut through; that from said divide westward the inclination of the land was to the west, while eastward from said divide the inclination was north and west; that the water lying upon the lands of the defendant were not surface waters, but they were swamp or marsh waters with a well-defined channel running northward; that if he should be permitted to continue the digging of his said private ditch, he would turn not only the natural channel or outlet of his portion of said swamp, but also that of the marsh lands for three-fourths of a mile northwards; that said Wade ditch was of sufficient size to carry off the water from the lands which it was constructed to drain, and no more; that it was not of sufficient size to carry off said waters so to be diverted from their natural channel; that if the defendant should be permitted to continue the digging of said ditch the waters would rush into said Wade ditch in such volume as to overflow its banks, and they would back up on and overflow said land of the plaintiffs, and render it unfit for use, and work the plaintiffs irreparable injury, for which they would have no adequate remedy at law; that by such overflow said land of the plaintiffs would be deteriorated in quality and injured in its market value; that there was in said swamp, flowing slowly northward, enough water to fill said Wade ditch, from its starting point to its outlet, about twenty times; that about twelve acres of said land of the plaintiffs was low land, and was only rendered fit for cultivation by the construction of said Wade ditch; that if the defendant should be permitted to finish his said ditch, he would overflow all or nearly all of said land, especially in the spring and fall, thereby rendering said land unfit for cultivation and practically worthless, and working irreparable injury to the plaintiffs. Prayer for an injunction.

A demurrer to the complaint for want of sufficient facts was overruled, and the defendant answered by a general denial.

The cause was commenced on the 23d of April, 1881. It came to trial on the 6th of February, 1882. A jury was empanelled and sworn "to try the matters in issue between the parties." The evidence having been introduced, and the arguments of counsel having been heard, the court, of its own motion, for its information, submitted to the jury, to be tried by the jury upon the evidence, certain questions of fact submitted to the jury by written interrogatories.

The defendant objected to each and all of said interrogatories for reasons stated. The court overruled the defendant's objections.

The defendant presented to the court three interrogatories, and requested the court to submit them to the jury to be answered, but the court refused to do so.

In submitting said questions to the jury the court gave to the jury, over the defendant's objection, an instruction numbered 1.

The jury returned written answers to said interrogatories so submitted by the court.

The record, as made up by the clerk from his entries, purports to show, next after the return of the jury, that the defendant moved to set aside the interrogatories submitted to the jury and the answers of the jury thereto, and for judgment in his favor on the evidence, notwithstanding said answers; that the court overruled this motion, and that the defendant excepted. There is a bill of exceptions in the record, but this motion is not set out or mentioned therein.

The record next shows that the defendant filed his motion for a new trial, which the court overruled, and that the defendant made and the court overruled a motion in arrest of judgment.

It is next shown that, upon the plaintiffs' motion therefor, upon the special findings returned by the jury, and upon the evidence given and heard in the cause, "the court does find that the material allegations of the plaintiffs' complaint are true, in substance and in fact, as therein alleged, and that they are entitled to the injunction as against the defendant, as therein prayed for." Then follows the judgment. It is shown by bill of exceptions that the defendant made several motions, which are set out in the bill, to modify the judgment, and that they were overruled.

The appellant has assigned as errors:

First. The overruling of the demurrer to the complaint.

Second. The overruling of the appellant's motion to set aside the interrogatories submitted to the jury and the answers thereto, and for judgment in his favor on the evidence, notwithstanding said answers.

Third. The overruling of the motion for a new trial.

Fourth. The overruling of the motion in arrest of judgment.

Fifth. The granting of the injunction set out in the record.

Sixth, Seventh and Eighth. The overruling of three motions to modify the judgment.

It is objected that the complaint charges a threatened trespass merely, and that, therefore, no ground for equitable relief is shown. It is not necessary to determine whether the wrong which it was sought to prevent would, if accomplished, constitute ground for what formerly would have been an action of trespass or for what would have been an action on the case. The principles upon which courts of equity prevent the creation of nuisances are very nearly related to those upon which they prevent trespasses.

The complaint shows the threatened doing by the defendant upon his own land of an act which would result, through gravitation, in a continuous or constantly recurring injury to the plaintiffs' land, amounting to a nuisance. Full compensation for the entire injury which would be inflicted by the constantly recurring or continuous grievance could not be obtained in one action at law. In such a case as that presented by the complaint, not only is a resort to a court of equity allowable, but the preventive relief is eminently adapted to the circumstances.

The appellant does not contend that, if by the digging of his ditch he should cause such a quantity of water to flow upon or over the land of the appellees as to cause substantial injury thereto, he would not be liable therefor, but he contends that he would only be liable to an action at law for damages; and he bases his claim, in part, upon the 12th section of the act of March 11th, 1867, Acts 1867, p. 188, providing for the construction by land-owners of new ditches into and communicating with ditches previously constructed on the lands of other persons, and making the person constructing such new ditch liable, from time to time, to the owners of land along the old ditch, for damages suffered by them in consequence of his failure to properly enlarge the capacity of the old ditch.

The new ditches contemplated and provided for in said section 12 were ditches constructed under and pursuant to statutory provisions therefor. Whether, if the ditch of the appellant was being made pursuant to...