The Indianapolis Water Co. v. Nulte

• Decision Date: 19 December 1890
• Docket Number: 14,595
• Citation: 26 N.E. 72,126 Ind. 373
• Parties: The Indianapolis Water Company v. Nulte
• Court: Indiana Supreme Court

26 N.E. 72

126 Ind. 373

The Indianapolis Water Company v. Nulte

No. 14,595

Supreme Court of Indiana

December 19, 1890

From the Marion Superior Court.

Judgment affirmed.

F Winter, A. Baker and E. Daniels, for appellant.

G. T Porter, for appellee.

OPINION

Coffey, J.

The material facts in this cause, as they are disclosed by the complaint, are, that on the 7th day of March, 1877, and for some years prior thereto, and until the 18th day of April, 1881, the water-works Company, of Indianapolis, Indiana, a duly organized corporation, was the owner, and in the possession of that part of the Central canal which is situated in Marion county, together with certain dams, water-powers, leases, and contracts, pertaining to said canal and its use. Of said dams one was at Broad Ripple, across White river, appurtenant to which were valuable water-powers and privileges, connected with which, on the east bank of the river, was a levee which protected the dam and the lands abutting on that side of the river from the overflow of the water held back by the dam, and especially protected the land from high water in the river. On the 7th day of March, 1877, the appellee in this case, being the owner of a certain described tract of land abutting on the east bank of White river, near the dam at Broad Ripple, upon a part of which the water-works company had built and then owned a levee, submitted to said company the following written proposition:

"To the Water-Works Company of Indianapolis, Indiana:

"I hereby propose and agree that if you will continue and raise the levee on the bank of White river from the point on the south where you did the work in 1876, to the fence running across my land dividing the field in corn last year from the field now in wheat, I will extend the levee north from said land as far as it is necessary, across my land, at my expense, and that I will maintain and keep up the same, and relieve and release the said water-works company from all damages or liability for damages from high water in the past or the future. The levee above referred to is on the east bank of White river, on my farm known as the 'Bacon farm,' in section 36, town. 17 north, of range 3 east, in Marion county, Indiana; and the water-works company can take earth from the land adjoining to make said levee."

The water-works company accepted the above proposition, and constructed the levee to the point indicated therein, whereupon the appellee extended the same as proposed.

Under a judicial decree rendered in the superior court of Marion county, all of the water-works property of the water-works company of Indianapolis, Indiana, was sold on the 18th day of April, 1881, and purchased by Edward Hamilton, John M. Dennison and Delivan Woodruff. On the 23d day of April, 1881, said purchasers, under the provisions of an act of the General Assembly of the State, approved February 4th, 1881, organized the Indianapolis Water Company, the appellant here, as a corporation, which succeeded to all their rights in said property. By reason of the failure of the appellee to keep that part of the levee constructed by him in repair, the same was broken on the 10th day of February, 1883, and the water escaping through the break, in a strong current, ran over the land on the east side of White river, and over the road of "The Westfield Gravel Road Company," and washed out a part of its road.

The appellant paid to the Westfield Gravel Road Company, on account of the damage done to its road, the sum of $ 325. The appellee, failing to repair the broken levee after notice, the same was repaired by the appellant at a cost of $ 1,000. This action was brought by the appellant against the appellee to recover the damages paid by it to the Westfield Gravel Road Company, and to recover the amount paid to repair the levee.

To a complaint setting out the facts above stated, the Marion Superior Court, at special term, sustained a demurrer, which ruling was affirmed upon appeal to the general term.

The question for our consideration relates to the propriety of the ruling of the court in holding the complaint before us insufficient as a cause of action.

Under this complaint the appellant contends for two elements of damages:

First. For the money paid to the Westfield Gravel Road Company by way of damages; and,

Secon...