Ramsey v. Ketcham
| Decision Date | 22 April 1920 |
| Docket Number | No. 10353.,10353. |
| Citation | 127 N.E. 204,73 Ind.App. 200 |
| Parties | RAMSEY et al. v. KETCHAM. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Monroe County; Robert W. Miers, Judge.
Action by John Ramsey and another against Walter Ketcham. Judgment for defendant, and plaintiffs appeal. Affirmed.
Robert C. Miller and James W. Blair, both of Bloomington, for appellants.
Joseph E. Henley and George W. Henley, both of Bloomington, for appellee.
This is an action by appellants against appellee for damages caused by an obstruction of an alleged water course, and to enjoin the continuance of the obstruction.
The facts as found by the court are in substance as follows: Since 1904 appellants have been the owners of a farm immediately north of a farm owned by appellee. The Monon Railroad extends through said farms in a northerly and southerly course on a grade about eight feet high. The principal portion of appellants' farm slopes from east and northeast to west and southwest. There is a spring on appellants' farm several hundred feet east of the railroad, from which the water runs in a southwesterly direction and is absorbed by the ground before it reaches the railroad. For some distance from the spring the water has made a channel from three to six feet wide down to nothing. No water from this spring reaches the west side of the railroad. There is no channel, bed, or banks west of the railroad. Before the railroad was constructed, the surface water from the high ground to the north and east of appellants' land ran south and west to Clear creek, spreading over appellants' land lying west of the place where the railroad is now located, but formed no branch, bed, or banks. Such water after leaving appellants' land passed over appellee's, then into Clear creek. The railroad constructed a culvert under its tracks at a point about six rods north of appellee's north line. The surface waters from appellants' land east of the railroad had their outlet through this culvert onto appellants' land west to the railroad, spread out over such land, and ran over appellee's land into Clear creek. Appellants' only means of exit to a public highway was over a private road, which they constructed from the railroad west along, and just north of, the south line of their farm. After the construction of said culvert, appellants diverted the flow of the surface water at the point where it left the culvert by digging a ditch from the culvert south to a point near said roadway and near appellee's north line. Appellee sought to obstruct the water thrown upon his land by the ditch, by building a dam at the point where the water from the ditch entered his land and thus caused the surface water to turn and run west on appellants' roadway. A rail fence which had been maintained on the dividing line west of the railroad caused the ground on the dividing line to rise, and tended to hold the water back on appellants' land. At times of heavy rain, after the construction of the dam, the water coming through the culvert ran upon and along said roadway and from twenty to thirty feet north thereof, rendering it impassable. The water from the culvert is thrown upon the roadway partly on account of the dam and partly because of the diversion of the water by said ditch. The water diverted by reason of the dam was surface water, and was not a natural water course with bed and banks. There is no natural channel or banks or water of any character on appellants' land west of the railroad except for a few days after a heavy rain. The said ditch is not a natural water course, but was constructed by human agency alone. Upon these facts the court concluded as a matter of law that appellants take nothing.
[1] The first contention of appellants is that the court erred in its conclusion of law. They insist that the statements in the special finding to the effect that the water complained of, and thrown back upon appellants' land, was surface water, are conclusions of law and not statements of facts, and must therefore be disregarded.
The particular statements which appellants insist should be treated as conclusions are: (1) That, prior to the construction of the railroad grade, “the surface water from the high ground to the north and east” of appellants' land ran southwest and spread over appellants' land lying west of the place where the railroad was afterwards constructed and formed no branch, channel, or banks; (2) that, after the construction of the culvert, “the surface water” from appellants' land to the east had their outlet through this culvert; (3) that appellants, after the construction of the culvert, diverted the flow of the “surface water” by digging a ditch, and that the dam built by appellee caused such surface water to turn west on appellants' roadway.
Among the various definitions given “surface water” we find the following: “Surface waters are such as diffuse themselves over...
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Mason v. Rockwall County Levee Improvement Dist. No. 1
...Drainage Dist. v. Ham, 275 Mo. 384, 204 S. W. 723; Sigler v. Inter-River Drainage Dist., 311 Mo. 175, 279 S. W. 50; Ramsey v. Ketcham, 73 Ind. App. 200, 127 N. E. 204; Horton v. Goodenough, 184 Cal. 451, 194 P. 34; Standley v. Ry. Co., 121 Mo. App. 537, 97 S. W. 244. Prior to the passage of......