Terre Haute & Indianapolis Railroad Company v. Zehner

• Decision Date: 28 November 1905
• Docket Number: 20,613
• Citation: Terre Haute & Indianapolis Railroad Company v. Zehner, 76 N.E. 169, 166 Ind. 149 (Ind. 1905)
• Court: Indiana Supreme Court
• Parties: Terre Haute & Indianapolis Railroad Company v. Zehner

76 N.E. 169

166 Ind. 149

Terre Haute & Indianapolis Railroad Company v. Zehner

No. 20,613

Supreme Court of Indiana

November 28, 1905

Rehearing Denied February 20, 1906.

From Marshall Circuit Court; Harry Bernetha, Judge.

Action by William Zehner against the Terre Haute & Indianapolis Railroad Company. From a judgment on a verdict for plaintiff for $ 4,000, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

John G Williams and D. P. Williams, for appellant.

Charles Kellison, for appellee.

OPINION

Hadley, J.

A chain of three lakes in Marshall county extends generally east and west for a distance of about three and one-half miles. The chain has Lawrence lake on the east, Meyers lake in the center, and Cook lake on the west. The water flow of all is to the west. Lawrence flows into Meyers, and Meyers into Cook, through narrow natural thoroughfares through which water perpetually flows from east to west, and all have a natural, common outlet at the west end of Cook. Each of said thoroughfares is crossed by a highway, the one between Lawrence and Meyers is known as "Lawrence crossing," and the one between Meyers and Cook as "Twin lakes crossing." About 1845 appellee's grantors, being the owners of the fee of the lands, raised a dam, that had been previously constructed across the general outlet of said lakes, at the west end of Cook lake, from nine feet to a height of thirteen feet, to furnish power for milling purposes. The raising of the dam set the water back over Cook lake, and through the thoroughfare at Twin lakes crossing into Meyers lake, thereby submerging additional lands along the margin of said lakes, owned in part by appellee's grantors, and in part by others, the fee of the real estate embracing Twin lakes thoroughfare, during all the time covered by these events, being in Elizabeth Witwer and her grantors. Shortly after the dam was raised the public highway referred to, running north and south, was constructed over Twin lakes thoroughfare. The crossing was effected by raising an embankment of earth a few feet above the water and in the original construction a culvert four feet wide was put in near the south shore, which was a high bank, to enable the water from Meyers lake to run through into Cook lake. This culvert being liable to fill with silt, or washings from the shore, in 1866 appellee constructed in the highway embankment, fifty to sixty feet north of the old one and above the center of the thoroughfare, another culvert of the same size and for the same purpose as the first one. These culverts kept the state of the water east and west of the highway embankment substantially the same. In 1883 the Terre Haute & Logansport Railway Company, in constructing a railway from Logansport to South Bend, traversed Twin lake crossing, over the highway embankment above described, on a trestle several feet higher than the embankment, the right to do so being secured by the construction of another embankment for the highway a short distance to the east. In making the new embankment the railroad company put in a culvert about the center of the thoroughfare and equal in dimensions to both those in the old embankment. The trestle supporting the railroad track over the old way did not interfere with the flowage of the water through the culverts in the old embankment. In 1890 appellant, having acquired the rights of the Terre Haute & Logansport Railway Company, without authority from appellee, filled up said trestle with dirt, and made a large and high embankment of earth from shore to shore, of said crossing, filling and destroying both of said culverts, and completely separating and damming the waters of Meyers lake, except so much thereof as will pass through a thirty-inch, iron pipe placed under the railroad, which amounts to a very small part of the whole, and whereby appellee's water-power is greatly diminished and rendered almost worthless.

This action was commenced in 1891 to recover damages for the loss of water-power which appellee claims to own, and alleges appellant wrongfully destroyed by filling up said culvert. Appellee affirms the right to flow and over-flow the lands upon which the highway embankment was located, and also that the right to draw water through said culverts had been acquired by him and his grantors by open, adverse, notorious, continuous, and uninterrupted user for more than twenty years before the commission of the grievance complained of under claim of right against the owners of the land.

A complaint in a single paragraph counting on a right by prescription was held good by the Appellate Court on appeal, and a judgment in favor of appellee reversed because not sustained by sufficient evidence. See Terre Haute, etc., R. Co. v. Zehner (1896), 15 Ind.App. 273, 42 N.E. 756. The case was again tried on the same complaint, slightly amended, which resulted in a verdict and judgment for appellee, which judgment was also reversed by the Appellate Court, on appeal, for insufficiency of evidence, and the cause was remanded for a new trial. See Terre Haute, etc., R. Co. v. Zehner (1902), 28 Ind.App. 229, 62 N.E. 508. The answers to the complaint were: (1) A general denial; (2) statutory authority to destroy the culvert. Upon the second return of the case to the Marshall Circuit Court appellee was permitted to and did on April 19, 1902, file two additional paragraphs of complaint, numbered two and three. The second counts on a prescriptive right to draw water through a culvert in a natural watercourse and a prescriptive right to draw water through a culvert built by him in a public highway, and seeks to recover damages for injury to his water-power caused by appellant's destruction of said culverts in 1890.

The third paragraph claims the right to the flow of water through a natural channel having well-defined banks and bed, and seeks to recover damage to his water-power because appellant in 1890 wrongfully filled up said channel, including the culverts therein, and stopped the flowage of the water to his mill. To each of these additional paragraphs of complaint a separate demurrer for insufficiency of facts was filed and overruled, and then there was filed an answer of general denial, and the six-year statute of limitations. Demurrers were overruled to the latter answers, and replies filed to the effect that the second and third additional paragraphs of complaint embodied and stated, in different legal form, the same cause of action that is stated in the first paragraph of complaint. Demurrers to the replies were overruled. There was a verdict and judgment for appellee.

The errors assigned by appellant are the overruling of its demurrers to the second and third additional paragraphs of complaint, the overruling of its demurrer to plaintiff's affirmative reply to the second paragraph of appellant's answer to the second and third additional paragraphs of complaint, and the overruling of its motion for a new trial.

Under the view we have taken of the case all the questions embraced within the assignment will be disposed of by our decision of two questions: (1) Can a right by prescription be acquired by adverse user against the fee owner of land impressed with the easement of a suburban public highway, provided the right asserted does not conflict with the lawful rights and usage of the public? (2) Was the cause of action sued on in the second and third paragraphs of complaint the same cause of action sued on in the plaintiff's original complaint, stated in a different legal form?

If the first question be answerable in the affirmative, then the additional paragraphs of complaint were properly held good, and, if good, the sufficiency of the evidence to support the verdict is beyond controversy, and no error was committed in refusing to give appellant's request number four. If the second be answerable in the affirmative, then the replies to the answers setting up the six-year statute of limitations were good, and the six-year limitation properly held to be inapplicable; then it follows that the court committed no error in giving instruction number two relating to that subject, and to that effect, nor in overruling appellant's motion to tax to appellee all the costs made in the case prior to the filing of said two additional paragraphs of complaint.

(1) The law is that the public, in appropriating and possessing lands of an individual for use as a suburban highway, acquires no greater right or interest in the lands actually occupied than an easement--that is, the right to use the surface of the land in perpetuity for all legitimate modes and purposes of travel, and the incidental right of properly putting the way in condition for unobstructed and convenient use--and the fee in the underlying soil remains in the abutter, or person over whose land the highway is located. It is firmly settled that special proprietary rights in the soil remain in the owner of the fee distinct from those of the public, an invasion of which rights will entitle the servient owner to damages. The fee owner may, in the exercise of these rights, and without interference with public use, throw up levees within the limits of the highway, higher than the highway embankment, to fight off flood waters. Shelbyville, etc., Turnpike Co. v. Green (1885), 99 Ind. 205. He may enjoin the owner of an easement to overflow his land from cutting ice formed on the submerged land. Brookville, etc., Hydraulic Co. v. Butler (1883), 91 Ind. 134, 46 Am. Rep. 580. He may also lay pipes under ground within the highway and may require another to answer to him in damages for doing the same thing. Kincaid v. Indianapolis Nat. Gas Co. (1890), 124 Ind. 577, 8 L. R. A. 602, 19 Am. St. 113, ...