Seymour Water Co. v. Lebline

• Decision Date: 15 May 1924
• Docket Number: 24,672
• Citation: 144 N.E. 30,195 Ind. 481
• Parties: Seymour Water Company v. Lebline
• Court: Indiana Supreme Court

144 N.E. 30

195 Ind. 481

Seymour Water Company v. Lebline

No. 24,672

Supreme Court of Indiana

May 15, 1924

Rehearing Denied December 16, 1924, Reported at: 195 Ind. 481 at 495.

1. WATERS AND WATERCOURSES.---Complaint for Flooding Land.---Sufficiency.---General allegations in a complaint for damages by flooding land that the plaintiff was the owner of the land flooded, that the flow of the water in a certain watercourse had been obstructed unlawfully and without right to plaintiff's damage, were sufficient as against a demurrer. p. 484.

2. APPEAL.---Abstract of Title.---Overruling Motion to Require Plaintiff to Furnish.---When Reversible Error.---A motion to require the plaintiff to furnish an abstract of title is addressed to the sound legal discretion of the court, and overruling it could only be cause for reversing the judgment when the record shows that such discretion had been abused to appellant's prejudice. p. 485.

3. ABSTRACTS OF TITLE.---Order to Furnish.---Discretion of Court.---The granting of an order that a party shall furnish an abstract of his title is in the sound legal discretion of the court, and its action will only be reversed when it is shown that such discretion has been abused to appellant's prejudice. p. 485.

4. PLEADING.---Abstract of Title.---Refusal to Order Filing.---Not Abuse of Discretion.---In a suit for damages for flooding plaintiff's land, the refusal of the trial court to order plaintiff to file an abstract of title to his land was not an abuse of discretion, it not appearing that there was any doubt as to the source of plaintiff's title, nor that defendant was ignorant of any facts which would have been shown by an abstract. p. 485.

5 PLEADING.---Overruling Demurrer to Argumentative Denial not Error.---An argumentative denial is a denial of what is alleged in the pleading to which it is addressed, and a demurrer thereto is properly overruled, even though, because of other pleadings in the record, sustaining the demurrer would be harmless. p. 486.

6 EASEMENTS.---Extinguishment.---By Occupancy by Owner of Servient Estate.---Where an easement was created by express written contract, lapse of time and occupancy by the owner of the servient estate will not extinguish it unless there was an absolute denial of the right to the easement and the occupancy was so adverse and hostile that the owner of the easement could have maintained an action for obstructing his enjoyment of it. p. 489.

7. EASEMENTS.---Abandonment.---Intention to Abandon Necessary Element.---Intention to abandon and put an end to an easement is a necessary element of abandonment thereof. p. 489.

8. EASEMENTS.---Abandonment.---Pleading.---In an action for flooding plaintiff's land by defendant's dam, in which the defendant pleaded an easement by grant to maintain the dam, a reply alleging non-user of the dam for 42 years, but not averring an intention to abandon the easement was insufficient on demurrer. p. 489.

9. WATERS AND WATERCOURSES.---Right of Flowage.---Adverse Possession Against.---Farming land that is subject to a right of flowage, and raising thereon corn, hay and other farm products, would not constitute such adverse possession as would set the statute of limitations to running against the right of flowage, as such use is not inconsistent with the continued right of flowage. p. 490.

10. ADVERSE POSSESSION.---What Constitutes.---Adverse possession, to ripen into title, must be such as would have exposed the party in possession to an action because of what was done by him, at any and all times during the prescribed period of limitation. p. 490.

11. ADVERSE POSSESSION.---Pleading.---General Averment Sufficient on Demurrer.---In the absence of a motion to make the pleading more specific, a general averment that, continuously for 42 years, the party claiming adverse possession had actual, open, notorious, exclusive and adverse possession of the land, free from and hostile to all right and use of all other persons, sufficiently pleads adverse possession. p. 490.

12. PLEADING.---Remedy for General Averments.---The remedy for general averments in the form of conclusions in a pleading is a motion to require the pleading to be made specific by setting out therein the facts on which each of such general averments is based. p. 490.

13. WITNESSES.---Direct Examination.---Objectionable Manner of Conducting.---A party to an action may not cause an elaborate statement of what he assumes to be the facts in issue to be prepared by an expert and then testify to those facts by merely giving an affirmative answer to the question whether or not the statement so prepared is correct. p. 491.

14. WITNESSES.---Direct Examination.---Leading Questions.---Discretion of Court.---Questions should not be asked a witness by which the attorney puts into the mouth of the witness evidence which he desires to have given, and the witness merely assents to it, but the extent to which leading questions may be permitted is usually in the sound legal discretion of the trial court. p. 491.

15. EVIDENCE.---Intention.---Witness May Testify as to.---In an action for damages for flooding plaintiff's land by the erection of a dam on the site of a dam which had not been used for more than forty years, the question of abandonment being involved, it was reversible error to exclude the testimony of an officer of the defendant as to its intention relative to abandoning the easement of flowage. p. 492.

16. EVIDENCE.---Intention.---How Proved.---When the intent with which an act was done is material, a witness having knowledge thereof may testify to such intent as a fact. p. 492.

17. TRIAL.---Instructions.---Must be Requested.---The failure of the court to instruct the jury as to the material averments of the pleadings is seldom, if ever, cause for reversing the judgment, it being the duty of the party desiring such an instruction given to prepare a proper instruction and present it to the court with a request that it be given. p. 493.

18. EASEMENTS.---Conveyance.---Milldam with Millsite.---Where the owners of a mill site have acquired the right to maintain a dam in connection therewith, such right would pass by any conveyance of the millsite without special mention in the deed. p. 494.

19. EASEMENTS.---Conveyance.---Erroneous Instruction.---In an action for damages for overflowing plaintiff's land by the erection of a dam, where the defendant pleaded its ownership of a right to a dam as appurtenant to its ownership of a mill site, an instruction which singled out an intermediate conveyance of the millsite in which the dam was not mentioned, saying that it conveyed no greater interest than the grantor therein had, held misleading as a disparagement of that particular instrument as evidence. p. 494.

20. NAVIGABLE WATERS.---Navigability.---How Established.---Riparian Rights.---The legislature, by declaring the Driftwood Fork of White River a public highway, did not make it a navigable stream so as to prevent the title to the river bed from vesting in the owners of the lands on either side. p. 495.

21. PLEADING.---Construction.---Presumptions.---A pleading which uses language of doubtful meaning will be construed against the pleader, as it will be presumed that a party has stated his cause of action or defense as favorably to himself as the facts will permit. p. 497.

22. EASEMENTS.---Abandonment.---Pleading.---In an action for damages for overflowing plaintiff's land by the erection of a dam, where the defendant pleaded its ownership of a right to a dam as appurtenant to its ownership of mill site, an allegation in a paragraph of reply that the defendant's remote grantors, after the mill was destroyed by fire, withdrew from and gave up the site, and thereafter completely failed to use said site and "abandoned" said mill and dam, held not to plead sufficiently that they intended to abandon said site, taking into consideration the other language used in connection therewith. p. 497.

From Jackson Circuit Court; James A. Cox, Judge.

Action by Charles Lebline against the Seymour Water Company. From a judgment for plaintiff the defendant appealed to the Appellate Court. (Transferred to the Supreme Court under § 1394 Burns 1914, Acts 1901 p. 567, § 10.)

Reversed.

Montgomery & Montgomery, for appellant.

Oren O. Swails, for appellee.

Ewbank C. J. Myers, J., absent.

OPINION

Ewbank, C. J.

Appellee, the plaintiff below, recovered a verdict and judgment against appellant for $ 2,011.38, as damages for the construction of a dam in the "Driftwood" or East Fork of White river, at Rockford, near Seymour, Indiana, by which the river was caused to overflow some of his land. Appellant's demurrers to the complaint, and to each of several paragraphs of reply were overruled, as was also its motion for a new trial, and appellant excepted to each ruling and has challenged each of them by a proper assignment of errors.

The complaint was filed January 10, 1921. It alleged in very general terms that plaintiff was the owner of a certain described tract of seventy-seven acres of farm land that bordered on White river, a short distance above the dam complained of; that in 1917 the defendant built and had since maintained a permanent dam, of stone, gravel and concrete with wing walls, by which it had permanently obstructed the flow of water in the river, and had caused the level of the water in that part of the river flowing across plaintiff's land to be raised; that by reason thereof, when the river was swollen by rains so as to overflow plaintiff's lands, the water was delayed in running off, and was caused to stand on plaintiff's fields, which were thereby made unfit for cultivation, and unsalable, to plaintiff's damage in the sum of $ 9,000;...