Schwartz v. Nie

• Decision Date: 18 June 1902
• Docket Number: 4,215
• Citation: 64 N.E. 619,29 Ind.App. 329
• Parties: SCHWARTZ v. NIE ET AL
• Court: Indiana Appellate Court

64 N.E. 619

29 Ind.App. 329

SCHWARTZ v. NIE ET AL

No. 4,215

Court of Appeals of Indiana

June 18, 1902

From Huntington Circuit Court; W. J. Vesey, Special Judge.

Suit by Daniel Schwartz against William Nie and others to enjoin the construction of certain ditches. From a judgment for defendants, plaintiff appeals.

Affirmed.

B. M Cobb and R. A. Kaufman, for appellant.

O. W Whitelock, S. E. Cook and C. W. Watkins, for appellees.

OPINION

HENLEY P. J.

This was an action for an injunction to prevent the construction of certain ditches which appellant avers would cause an unusual and unnatural flow of water to be thrown upon his land. The court granted a temporary restraining order, and upon the trial made a special finding of facts, and stated conclusions of law thereon. The question upon appeal is presented by the exception to the conclusions of law. Appellant does not deny but that the facts found are correct, and has made no attempt to bring the evidence into the record. The court found the facts at great length. Each separate finding refers to a certain plat which is filed with the special findings, and is part of the record. We do not believe that it would serve any useful purpose to place in the reports this plat, together with an abstract of the court's finding of facts. We think it sufficient to set out findings eighteen, nineteen, twenty twenty-one, and twenty-two, which settle the question involved, adversely to the appellant, and which are as follows: "(18) That said defendants do not propose to, nor will said proposed drain, drain into said Meese ditch the water falling upon any lands different from that which already drain therein, and which naturally flow in that direction. (19) That the construction of said ditch as proposed by said defendants will cause the said water to reach the said Meese ditch in less time than it would without the construction thereof, and to some extent tend to increase the flowage of water in the said Meese ditch. (20) That in its present condition said Meese ditch is insufficient to carry off the water flowing therein in times of high water, and the same overflows portions of the land of the said plaintiff Schwartz. (21) That the construction of said proposed ditch by said defendants will increase the flowage over plaintiff's land to an appreciable extent, which I find to be one-half acre more than it would otherwise overflow. (22) That by said additional flowage of water, one-half acre of the land of the defendant would be rendered useless...