Smith v. Holloway

• Decision Date: 17 June 1890
• Citation: Smith v. Holloway, 124 Ind. 329, 24 N.E. 886 (Ind. 1890)
• Parties: Smith v. Holloway.
• Court: Indiana Supreme Court

124 Ind. 329

24 N.E. 886

Smith

v.Holloway.

Supreme Court of Indiana.

June 17, 1890.

Appeal from circuit court, Pike county; O. M. Welborn, Judge.

E. A. Ely and J. W. Wilson, for appellant. F. B. Posey, for appellee.

Elliott, J.

The appellee alleges in his complaint that in August, 1869, he was the owner of a tract of land; that prior to that date he granted a right of way for the construction of a railroad to the Evansville, Indianapolis & Cleveland Railroad Company; that the company constructed an embankment; that on the day named he conveyed to Granville Carlisle all of the tracts lying south and east of the right of way; that by a series of conveyances the defendant became the owner of the parcel conveyed to Carlisle; that on the 15th day of August, 1885, the appellee sold to the appellant a strip of land for a road 15 feet in width; that there is a spring from which a stream of water constantly flows; that this stream crosses the strip granted the appellant, and runs along the south line of the embankment, and into the inclosed land of the appellant; that on the 1st day of June, 1885, an agreement was made between the appellee and the appellant under which they erected a partition fence on the top of the embankment; that for more than 15 years before the agreement was entered into the appellee had used and enjoyed the stream; that it was agreed that the appellee's right to have the stream flow into his field should never be disturbed; that the partition fence should never be so changed as to interfere...