The Lake Erie And Western Railroad Company v. Young
| Decision Date | 10 November 1893 |
| Docket Number | 16,369 |
| Citation | 35 N.E. 177,135 Ind. 426 |
| Parties | The Lake Erie and Western Railroad Company v. Young et al |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
The judgment is affirmed.
J. W Lovett, S. M. Keltner, F. S. Foote and W. E. Hackedorn, for appellant.
E. E Hendee, for appellees.
The appellant's railroad extends along its right of way through the lands of appellees, crossing Lilly creek, a natural stream of water, on trestle work about thirty feet high and three hundred and twenty feet long.
Appellant being about to fill up this trestle work with earth, except a space to be occupied by a stone arch or culvert with an opening twelve feet wide and ten feet and five inches high in the arch, appellees brought suit to enjoin the work, claiming that the arch would be insufficient for the passage of the waters of Lilly creek, and that great, continuous, and irreparable injury would be done appellees by so impeding the flow of the waters.
A temporary restraining order was granted appellees on their petition.
A motion to dissolve this order was overruled, as was also a demurrer to the complaint.
The appellant answered by way of a plea in confession and avoidance, and also by a general denial.
A demurrer to the special paragraph of answer having been overruled, the appellees replied by a general denial.
A motion by appellant objecting to the trial of the cause by a jury, or to the submission to a jury of any question of fact involved in the issues, was overruled by the court.
Francis Watkins, Foreman.
Pending the finding and decision of the court, the restraining order was so modified as to permit the filling up of the trestle work with earth, except that, in addition to the culvert, another opening, not less than fifteen feet in width on the bottom, at the natural level, should be left free of earth.
The court, at the request of the appellant, made its finding of facts and conclusions of law thereon, finding the facts in favor of the appellees, and found, as conclusions of law upon the facts found, that the appellees "are entitled to have the injunction and restraining order hereinbefore granted and modified, made perpetual."
A decree was entered in accordance with the finding.
The errors assigned and discussed by counsel have reference to the sufficiency of the complaint, and to the finding of facts and conclusions of law.
The appellant contends that the complaint shows that a right of action had not accrued, and, therefore, that a demurrer to it should have been sustained. We think that counsel have misapprehended the nature of the complaint. This is not an action for damages simply, but a suit for injunction to prevent threatened damages.
The case of Sherlock v. Louisville, etc., R. W. Co., 115 Ind. 22, 17 N.E. 171, upon which appellant relies, was an action seeking various forms of relief for injury to land, amongst them being damages for overflow of the land caused by a defective construction of the defendant's railroad bridge. It was said in that case: "That the right of the plaintiff was to have his land free from the overflow, and to recover the damages resulting therefrom; and that the wrong of the railway company was the negligent construction and maintenance of the bridge." And the court held that it was not shown in the answer that the railroad company had a prescriptive right to flood the plaintiff's land, or that he had any knowledge that the bridge would flood the land, or acquiesced in such flooding. It did not therefore appear that the action was not brought in good time, and the answer of the company was held bad. In so far as that case has any bearing upon the case before us, we think it is against the contention of the appellant.
The material averments of the complaint, so far as they need be set out here, are: That the defendant is the owner of and operating a railroad which runs over and through plaintiff's lands, where it crosses a natural stream of water known as Lilly creek, along which stream there flows a large amount of water during the seasons of the year when there is the most rainfall; that when said railroad was constructed in 1875, it was built across said stream on said land on trestle work, about thirty feet high the trestles being fifteen feet apart, and extending out on each side of said stream until the entire bridge of trestle work was three hundred and twenty feet long, thus leaving full and free opening for all the water coming down said stream; that the amount of water coming down said stream in times of heavy rainfall, and during the wet seasons of the year, is such that the high water mark on said trestle work bridge is ten feet above ground, and extends to a width of the entire length of said trestle work, and ranging in depth from five to ten feet, and that it is not, and has not, been unusual for the water during the rainy season to run that high; that the defendant, at the commencement of this suit, had adopted plans for, and commenced to construct, a stone arch culvert for said stream, under said railroad, with an opening twelve feet wide and...
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Lake Erie & W.R. Co. v. Young
... ... A. Chapman, Judge.Action by Samuel E. Young and others against the Lake Erie & Western Railroad Company to restrain defendant from constructing an embankment across a stream, and thus ... ...