Todd v. Badger
| Decision Date | 05 April 1893 |
| Docket Number | 15,851 |
| Citation | 33 N.E. 963,134 Ind. 204 |
| Parties | Todd et al. v. Badger et al |
| Court | Indiana Supreme Court |
From the Wabash Circuit Court.
Judgment reversed, with directions to the circuit court to overrule the motion of the appellees for judgment on the answers to interrogatories notwithstanding the general verdict, and for further proceedings not inconsistent with this opinion.
C. E Cowgill, H. B. Shively and H. C. Pettit, for appellants.
A Taylor and J. D. Conner, for appellees.
The complaint in this case alleges, substantially, that the plaintiffs are the owners, tenants in common, and in the possession of certain described land in Wabash county Indiana; that in the year 1887 a certain public ditch, eleven hundred and eighty-eight feet in length, known as Badger's Ditch, was established and constructed by order of the Wabash Circuit Court; that said ditch begins at a point about twenty rods west of the junction of Shugrue creek and Rock Springs branch, which streams flow in a southwesterly direction over the lands of the appellees Badger and Badger to the Wabash river; that said public ditch runs from the point of beginning south to the Wabash and Erie canal; that in the spring of 1888 the appellees, for the purpose of damaging the appellants, and for the purpose of destroying the growing crops on their land, cut a ditch from the junction of said creeks east to the said public ditch, and did erect a dam in the bed of said creeks, and thereby turned the water flowing in said streams into said ditch; that by reason of said dam the water usually flowing in said streams was forced back on the surrounding lands, including the lands of appellants, overflowing the banks of said streams, and damaging the growing crops thereon; that the public ditch, not having been constructed for that purpose, was not sufficiently large to contain the water flowing in said streams, and by reason thereof overflowed the banks thereof and escaped to the lands of the appellants, damaging the land, ruining the growing crops thereon, and the appellants' fences and drains, to their damage, and thereby creating a nuisance.
The appellees filed an answer consisting of five paragraphs. The court sustained a demurrer to the second, third, and fifth paragraphs of the answer, and overruled it to the fourth.
A trial by jury resulted in a general verdict for the appellants for the sum of fifteen dollars.
With the general verdict the jury returned answers to special interrogatories, upon which the court rendered judgment for the appellees notwithstanding the general verdict.
By the assignment of errors, the appellants call in question the action of the court in overruling their demurrer to the fourth paragraph of the answer, and in rendering judgment for the appellees on the answers to special interrogatories notwithstanding the general verdict.
The fourth paragraph of the answer in question amounts to nothing more than an argumentative denial of the matters alleged in the complaint. There was no available error in overruling a demurrer to it.
From the answers to interrogatories, from number one to number twelve, it appears that prior to the construction of what is known as the Badger Ditch, Shugrue creek and Rock Springs branch flowed in a well defined channel both above and below their junction, and from such junction they flowed in a southwesterly direction over the lands of the appellees Henry Badger and Granville Badger, into the old Wabash and Erie canal. In...
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