Saucer v. Keller

• Decision Date: 05 November 1891
• Docket Number: 15,173
• Parties: Saucer v. Keller et al
• Court: Indiana Supreme Court

28 N.E. 1117

129 Ind. 475

Saucer v. Keller et al

No. 15,173

Supreme Court of Indiana

November 5, 1891

From the Howard Circuit Court.

Judgment affirmed, with costs.

R Kimple, J. C. Blacklidge, W. E. Blacklidge and B. C. Moon for appellant.

J. F Elliott and S. L. Kirkpatrick, for appellees.

OPINION

Olds, J.

The appellant and the appellees were adjoining land-owners. The land of the appellees was wet, and unfit for cultivation without drainage, and the natural and only outlet for the drainage of appellees' land was across the land of the appellant.

The appellees being desirous of draining their lands entered into a parol agreement with the appellant whereby appellees were allowed to connect the ditches upon their own land with a ditch on the land of the appellant, by constructing and putting in tile drain across the land of the appellant and intersecting with the ditch upon his land, thereby affording drainage for the appellees' land, the appellees agreeing to pay the appellant a compensation for such privilege, the amount to be fixed after the drain was completed, by appellant and appellees each selecting a disinterested person to fix the amount to be paid. In pursuance of this agreement the appellees proceeded to and did put in said tile ditch, connecting the ditches upon their own land with that upon appellant's land, at their own expense, and when completed selected a person to act for them in fixing the amount of compensation to be paid. The appellant neglected and refused to select any person to act for him in pursuance of said agreement. After the lapse of nearly two years the appellant, without authority, wrongfully took up some of the tiling in the ditch so constructed by the appellees upon his land, and thereby obstructed the ditch and drainage of appellees' land.

The appellees file their complaint in this action, alleging, in substance, the foregoing facts, and that they have at all times been willing to pay the amount fixed by the persons to be chosen to assess the amount to be paid appellant, and that they are willing to pay a reasonable sum. They further allege that appellant is threatening to, and is about to, take up other portions of the ditch, and to change the line of the ditch on his land which their ditch intersects, thereby destroying their means of drainage, asking for damages and for a restraining order preventing the appellant from further interfering with such drainage.

Issue was joined by answer of general denial. The cause was tried by the court, resulting in a finding and judgment for the appellees.

Errors are assigned that the complaint does not state facts sufficient to constitute a cause of action, and in overruling a motion for a new trial.

The question is presented as to the validity of the license to enter upon the land of the appellant and construct the drain.

In the case of Ferguson v....