Steinke v. Bentley
| Decision Date | 13 May 1893 |
| Docket Number | 913 |
| Parties | STEINKE ET AL. v. BENTLEY ET AL |
| Court | Indiana Appellate Court |
From the Marshall Circuit Court.
Judgment affirmed.
C Kellison, for appellants.
S Parker, for appellees.
This is an action brought by appellees to recover damages by reason of appellants having closed up two drains upon their own lands, through which appellees claimed a right, by way of an easement, to conduct the water off their lands.
From the special findings of fact, it appears that in the year 1862 one Perses Reeves was the owner of the two tracts now owned by the appellants and appellees respectively. At that time the land now owned by appellees was wet, and required drainage to make it fit for use, and she then constructed two ditches upon and from that land, across the tract now owned by appellants, emptying into a natural running stream, whereby the water was drained off the tract now owned by appellees. These ditches were of sufficient capacity to, and did, properly drain the marsh lands now owned by appellees. From the time of their construction forward until 1884, when obstructed by appellants, these ditches were all the time open, plain, and visible ditches from their sources to their outlets, and were, during all that time, operating to, and did, drain the wet lands and marshes on the land now owned by appellees, and were continuously used by the owners of that tract under a claim of right, all of which was well known to appellant August Steinke when he purchased his tract, and to both the appellants when they obstructed the ditches, and when August conveyed to John E. Steinke.
In 1866 said Perses Reeves conveyed the one tract to Mary Ann Kennedy, a married woman, who, in 1876, conveyed it to August Steinke, and he, in 1889, conveyed the same to the appellant John E. Steinke, the present owner, reserving the use of a part of the house and barn, and reserving, also, one-fourth of the products of the land.
In 1872 said Perses Reeves conveyed the other tract to Wm. H. G. Bentley, from whom the appellees inherited it in 1885.
In the year 1883, said August Steinke obstructed and filled up the greater part of one of said ditches, known as the east ditch, upon his land, thereby almost completely obstructing and preventing the drainage of Bentley's land. Bentley objected to this obstruction, claimed the right to have said ditch kept open to drain his land, and threatened legal proceedings to enforce this claim. With knowledge of this claim by Bentley, August Steinke, in the year 1883, agreed that if Bentley and one Nash, who also owned land which drained into this ditch, would each cut one-third of an open ditch on the land of said Steinke, where said east ditch had originally been made, he would cut and open one-third of the same, and allow the water from Bentley's said land, and that of Nash, to flow through said east ditch onto and over his land. This agreement to re-open the ditch was carried out, and the ditch restored so as to properly drain the lands of Bentley. At the time of the conveyance to him, John E. Steinke had knowledge of this agreement, and that the ditch had been re-opened by the parties under it.
In 1884 said August Steinke, assisted by John E., without the knowledge or consent of said Wm. G. H. Bentley, laid four-inch tiles in the east ditch, and built an embankment across the same, at the line of appellee's land, leaving no other outlet for the water in said ditch from appellee's land except said tiles, which were wholly insufficient to properly carry off the water which usually and naturally flowed through said east ditch, whereby five acres of cleared and tillable land of appellees were rendered wet and unfit for cultivation, and four acres of appellees' marsh land kept flooded, whereby appellees were damaged, etc.
As to this east ditch the court's conclusions of law were in favor of appellees, while as to the west ditch he gave them no damages. The appellants jointly and severally excepted to the correctness of the court's conclusions.
The complaint alleges the agreement for the restoration of the ditch to have been made by Steinke, Nash, and the appellees, instead of the appellees' ancestor, as shown by the facts. Appellants insist that in this there is a variance which amounts to an absolute failure of proof, by reason of which they are entitled to judgment.
Section 391, R. S. 1881, provides that "No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits."
"Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs." Section 392.
If the court may thus direct the jury, he may, of course, thus find himself, when the cause is tried without a jury.
"In order to constitute a failure of proof, and not merely a variance, the allegation of the claim or defense must be unproved, not in some particular or particulars only, but in its general scope and meaning." Section 393.
We have a right to suppose the findings supported by the proof, and no objection appears to have been made to proof that this arrangement was made with appellees' ancestor instead of with them.
Appellees were in direct privity with their ancestor, and stand in his shoes. Had objection been made, or even without objection, the court might have permitted the pleading to be amended. No claim is made that appellants were misled on the trial, and we are unable to see how they could have been misled.
In Roberts v. Graham, 6 Wall. 578, 18 L.Ed. 791, this rule is laid down:
"The objection of a variance, not taken at the trial, can not avail the defendant as an error in the higher court, if it could have been obviated in the court below."
This is quoted with approval by ELLIOTT, J., in Graves v. State, 121 Ind. 357, 23 N.E. 155.
These propositions are also sustained by Taylor v. State, 130 Ind. 66, 29 N.E. 415; Braden, Admr., v. Lemmon, 127 Ind. 9, 26 N.E. 476; Hedrick v. Osborne & Co., 99 Ind. 143; Krewson v. Cloud, 45 Ind. 273; 1 Estees' Pleading, section 205; Green and Myer's Missouri Pleading, section 468.
It was within the province of the court to have permitted an amendment on the trial. Leib v. Butterick, 68 Ind. 199; Child v. Swain, 69 Ind. 230.
We are, therefore, of opinion that the variance was not material within the meaning of the statute, and since the complaint might have been amended in the court below to correspond to the proof, it will be deemed to have been so amended here. Bristol Hydraulic Co. v. Boyer, 67 Ind. 236.
The fair construction of the arrangement made for the restoration of the ditch is that Nash and Bentley were to have the perpetual right to flow water from their lands through the ditch. There is no limitation as to its duration, and nothing to indicate that it was merely temporary. On the contrary, all the facts stated point to the opposite conclusion.
If we deem the right of Bentley to have been created by this agreement and its execution, the parol agreement thus acted upon by the parties, there being both performance and possession taken, created, in equity, a right of easement which became appurtenant to the land, and passed with it to the appellees. Nowlin v. Whipple, 120 Ind. 596, 22 N.E. 669; Hodgson v. Jeffries, 52 Ind. 334; Snowden v. Wilas, 19 Ind. 10; Robinson v. Thrailkill, 110 Ind. 117, 10 N.E. 647; Cook v. Pridgen, 45 Ga. 331.
Counsel for the appellants urges that under the facts of this case all the damages to the land inured to Wm. G. H. Bentley, who was the owner when the ditch was closed up; that the obstruction was a permanent one, and all damages must be recovered in one action.
We are unwilling to give our adherence to the proposition that appellants could thus force appellees or their ancestor to part with their right of drainage, and rely upon the recovery of damages. Appellees were entitled to the continued use of the drain. The right having vested in them, it could not be taken from them without their consent or acquiescence. They could maintain this right by injunction. 3 Sutherland on Dam., sections 1036 to 1039; 1 Addison on Torts, section 404.
The wrong done by appellants did not constitute a mere trespass for which a single recovery would suffice, but it constituted a continuing nuisance from which appellees were entitled to be relieved, as well as to a recovery of damages.
Our statute, R. S. 1881, section 289, thus defines a nuisance: "Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action."
By section 291 is given also the right to abate it upon a proper showing.
Wood on Nuisances, section 13, thus distinguishes between a nuisance and a trespass: "A trespass is a direct and forcible invasion of one's property, producing a direct and immediate result, and consisting usually of a single act; but injuries of this class (nuisances), are indirect and a...
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