Terre Haute & I.R. Co. v. Zehner

• Decision Date: 16 January 1902
• Parties: TERRE HAUTE & I. R. CO. v. ZEHNER.
• Court: Indiana Appellate Court

28 Ind.App. 229

62 N.E. 508

TERRE HAUTE & I. R. CO.

v.ZEHNER.

Appellate Court of Indiana, Division No. 1.

Jan. 16, 1902.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Action by William Zehner against the Terre Haute & Indianapolis Railroad Company for damages for obstructing water flowing to plaintiff's mill. From a judgment for plaintiff, defendant appeals. Reversed.

John G. Williams, for appellant. Charles Kellison and Samuel Parker, for appellee.

HENLEY, J.

This was an action by William Zehner, the appellee, against the Terre Haute & Indianapolis Railroad Company, appellant, to recover damages for the loss of a water power which Zehner claimed to own, and which it was alleged appellant, by its wrongful acts, had to a large extent destroyed. The original complaint was filed in 1893. After being amended, an answer in two paragraphs was filed; the first being a general denial, and the second setting up that the acts complained of were lawfully done by appellant under its statutory powers as a railroad company. The reply to this second paragraph of answer was a general denial. A trial of the cause resulted in a judgment against appellant, from which an appeal was taken to the appellate court. On January 21, 1896, this judgment was reversed by the appellate court for error of the Marshall circuit court in overruling the motion for a new trial. Railroad Co. v. Zehner, 15 Ind. App. 273, 42 N. E. 756. A new trial having been granted in the circuit court below, pursuant to the decision of the appellate court, on the 15th day of April, 1897, it was ordered that, the original papers and pleadings having been lost or destroyed by fire, the parties should file substituted pleadings, and thereupon a substituted amended complaint, a substituted answer, and a substituted reply were filed. This substituted amended complaint is an exact copy of the complaint set forth in the former opinion of the appellate court, except that it alleges the wrongs complained of to have been committed in October, 1890, instead of October, 1891, and except that the use of water drawn through “a culvert or culverts,” instead of through a single culvert, is alleged. The substituted answer was in two paragraphs, the first being a general denial. None of the questions discussed arise upon the second paragraph of answer or the general denial filed as a reply thereto, and no further reference is made to them. A second trial of the case was had before a jury. At the request of each party, interrogatories were submitted to the jury. On April 29, 1897, the jury returned a verdict for the appellee, assessing his damages at $3,875, and also returned answers to the interrogatories submitted to them. A motion by the appellant for a venire de novo was overruled; also a motion by the appellant for judgment on the answers to the interrogatories notwithstanding the general verdict. Afterward the appellant filed its motion and reasons for a new trial. This motion was overruled. It is assigned as error in this court: “First, the court below erred in overruling the appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; second, the court below erred in overruling the appellant's motion for a new trial.”

We think this court decided every question involved in the present appeal in Railroad Co. v. Zehner, supra. It was there said: “Before the appellee can recover damages of the appellant, he must make it appear: (1) That he is entitled to the use of the water on the east side of the embankment; (2) that he...