Shelbyville & Brandywine Turnpike Co. v. Green

• Decision Date: 27 September 1884
• Docket Number: 11,477
• Citation: 99 Ind. 205
• Parties: Shelbyville and Brandywine Turnpike Company et al. v. Green
• Court: Indiana Supreme Court

99 Ind. 205

Shelbyville and Brandywine Turnpike Company et al. v. Green

No. 11,477

Supreme Court of Indiana

September 27, 1884

Petition for a Rehearing Overruled Jan. 23, 1885.

From the Shelby Circuit Court.

B. F Love, A. Major and H. C. Morrison, for appellants.

T. B Adams and L. T. Michener, for appellee.

OPINION

Bicknell C. C.

This was a complaint for an injunction by the appellee against the appellants.

The complaint alleges that the turnpike of the defendants passes through the plaintiff's land; that the plaintiff, on the east line of his land, has built a levee to prevent overflow by high water; that the levee and turnpike are united together at the sides and on the top of the turnpike, but that the levee does not in any way interfere with the public or corporate use of the turnpike, or of the adjacent ground; that the defendants are wrongfully entering on the levee and detaching it from the turnpike by removing the earth from the levee for a distance of ten feet, thereby exposing it to destruction, and the plaintiff's land to overflow from Blue river; that the levee, as it was built, will prevent such overflow from coming on plaintiff's land, as it often did, to his great damage, before said levee was built; that if said levee is detached from said turnpike as aforesaid, great and irreparable damage will be suffered by the plaintiff.

The defendants answered in three paragraphs, of which the second was the general denial. The first and third paragraphs alleged, in substance, that the overflowings of Blue river had always gone over the plaintiff's land and returned into the river below; that the plaintiff's levee came upon the top of the turnpike and made it about three feet higher, making a sharp ridge there difficult for loaded teams, and that the effect of the levee was to flood the turnpike, making it impassable, whereby it obstructed the defendants' right of way, to their great damage; that the plaintiff built his levee after being notified by the defendants not to do it; that they had only removed from the top and sides of their road the dirt unlawfully placed there by the plaintiff, and that this was all they intended to do.

The defendants also filed a cross complaint, alleging, substantially, the same matters, and claiming $ 1,500 damages, and that the plaintiff be required to remove his levee from the said right of way, and take it down so that it will not injure the defendants' road.

The plaintiff replied denying the special defences, and he answered the cross complaint by a denial. The issues were tried by the court without a jury, and at the request of the parties the court made a special finding of the facts and stated the conclusions of law thereon.

The following are the special findings:

"1. At the commencement of this suit the plaintiff was and still is the owner in fee simple and in possession of the real estate described in the complaint.

"2. In 1862 and 1863 the Shelbyville and Brandywine Turnpike Company constructed a turnpike road from Shelbyville to Brandywine creek, in said county, which road was constructed through the lands of plaintiff, described in the complaint, and have been in the possession of said line of road since said time.

"4. That said real estate is contiguous to a stream of water, known as Big Blue river, which flows along a portion of the east and south sides of plaintiff's land, which will more fully appear by reference to a map attached hereto, and to be considered as a part of this finding, as follows, to wit:

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"5. The greater portion of said real estate lies in the valley of said river, and is what is commonly known as bottom land, used by the plaintiff for general farming purposes, and has been so used for many years.

"6. All that portion of said realty lying in said valley, at the time of building the levee hereinafter mentioned, has, and for a great many years prior thereto, and before and since the building of said turnpike, had been subject to inundation and overflow by the waters of said river in time of freshets, when the waters of said river were above the banks of said river and flowed over the said turnpike road, and also spread over said realty and adjoining lands, washing and carrying therefrom fences and soil, and injuring and destroying crops growing thereon, to the great damage of the plaintiff and the turnpike company.

"7. In the summer and fall of 1881 and 1882, the plaintiff constructed and now maintains an earthen levee or embankment on the east side of said real estate, but within the boundaries thereof, for the purpose of protecting his said crops and realty from the washing of the high waters, incident to the overflow of the high waters and freshets from said river, which will be learned and its relation to said land will more fully appear by reference to the map herewith.

"8. The plaintiff built and constructed said levee against and upon the embankment and road-bed of said turnpike, where it crosses the east line of said lands of plaintiff, so that the levee and turnpike are united together at the sides and on the top of the tnrnpike, but said levee or embankment does not interfere with or render inconvenient the public or corporate use of and enjoyment of said turnpike road, or the adjacent ground.

"9. At the commencement of this suit Christopher Houston, Samuel D. Day and Allen Thomas were directors of said turnpike road, and said Houston was acting in the capacity of superintendent of said road.

"10. At the commencement of this suit, the said turnpike company, through its superintendent, Houston, and his employees, had entered upon said levee, and were detaching it from said turnpike, by removing the earth composing the said levee from the top of the said turnpike where the levee crosses it as aforesaid, and were removing the earth and destroying the said levee thereon, and thereby exposing the said levee to destruction, and said real estate to washing and overflow by high waters from said river, and the defendants were threatening to and will cut said levee from the embankment of the turnpike and virtually destroy the same, unless enjoined.

"11. That said levy, if not detached from said turnpike, and if permitted to remain as it was built, will prevent the high waters of said river from overflowing and washing said real estate to a large extent, and will thereby prevent much damage to said lands and to the plaintiff.

"12. That, previous to the construction of said levee, there was and still is a depression washed out across the lands of plaintiff, commencing a few rods from the river bank, at the bend of the river where the same turns in a southerly direction, and when there was a rise in said river the water passed over said lands of plaintiff.

"13. That, in the construction of said turnpike, the said company took possession of and occupied the right of way occupied by the said road-bed and embankment, with the consent of plaintiff's grantors, and have continuously occupied the same since he became the owner of said lands with his consent.

"14. That the said company, in the construction of their road, did not, and since that time have not constructed any ditches or drains through the land of the plaintiff.

"15. The depth of the flow of the high water, east of plaintiff's levee and over said turnpike road, for the distance of one-fourth of a mile, has been and will be greater by reason of the erection of said levee than before; that this flow is east of plaintiff's lands, and where the turnpike road is located on the lands of William A. Moore, from whence it flows back over the lands of plaintiff and said turnpike west of said levee, and by reason of checking the flow of the water over said depression and the lands of the plaintiff rendering the defendants' road more liable to be overflowed and damaged on the lands of said Moore east of the lands of plaintiff where the road-bed is not so high as said levee.

"16. The said levee does not obstruct any channel of said river, nor is any part of said levee erected in or across any channel of said river in whole or in part.

"17. Soon after the said turnpike was constructed through said lands, the then owners of said lands erected fences at the sides of said turnpike embankment, and said fences have since been maintained, and are now where they were originally erected.

"18. Before the plaintiff constructed his said levee the defendants, the said turnpike company, notified him not to erect any part of his said levee on or over their right of way or roadbed.

"19. The defendants Day and Thomas have done no act toward the removal of the plaintiff's levee except while sitting as members of the board of directors, and acting for said company, in officially entering an order on the books of said company, ordering the said Houston to remove said levee from the company's right of way, which the said Houston was proceeding to do, when this suit was commenced.

"20. The construction of said levee on the lands of said plaintiff prevents the flow of water over his lands in the time of freshets, and thereby to some extent prevents the water from flowing beyond the limits of plaintiff's lands as rapidly as it otherwise would do, and has the effect to bank up the waters on the lands of William A. Moore and on and over the turnpike of the defendants in extraordinary and unusual freshets or floods, and making it more liable to wash and be destroyed for the distance of one-fourth of a mile.

"21. The said company obtained an easement over the lands of plaintiff by going thereon and constructing their road with the consent of the then land-owners, and by no other means."

Upon the foregoing facts the following were the conclusions of law:

"1. As to the...