Trout v. Woodward

• Decision Date: 12 December 1916
• Docket Number: No. 9114.,9114.
• Parties: TROUT et al. v. WOODWARD.
• Court: Indiana Appellate Court

64 Ind.App. 333

114 N.E. 467

TROUT et al.

v.WOODWARD.

No. 9114.^*

Appellate Court of Indiana, Division No. 2.

Dec. 12, 1916.

Appeal from Circuit Court, Clay County; John M. Rawley, Judge.

Suit by Tarleton C. Woodward against Robert E. Trout and others. From a decree and judgment for plaintiff, defendants appeal. Affirmed.Clarence A. Royse, George O. Dix, and James A. Cooper, Jr., all of Terre Haute, for appellants. William R. Nesbit, of Sullivan, and Arthur Denny Cutler, of Carlisle, for appellee.

MORAN, P. J.

Appellee, in the court below, obtained a mandatory injunction against appellants, directing them to remove a certain concrete dam and from maintaining the same on their real estate, which adjoined appellee's, which appellee alleged interfered with the flow of a water course which furnished drainage for his real estate. In addition to relief by mandatory injunction, appellee was awarded judgment in damages in the sum of $10. A reversal of the decree and judgment is sought on the ground that the court erred in overruling appellant's demurrer to appellee's second paragraph of complaint, in stating its conclusions of law upon the facts specially found, and in overruling appellants' motion for a new trial. The second paragraph of complaint in substance alleges: That appellee is the owner of a certain tract of real estate in Sullivan county, Ind., which is under a state of cultivation. That appellants own a tract of real estate, which joins appellee's real estate on the south. That the slope of appellee's land is to the south, and from time immemorial the surface water from appellee's lands has been collected into an artificial channel running through appellee's land, the water of which has been discharged onto the land of appellants through a well-defined channel, which continues across a part of appellants' land. The channel is some 3 feet deep, varying in width; at places it is 3 feet wide in the bottom and 6 feet wide at the top, and constitutes appellee's only outlet, and through which the water from his farm has been discharged for more than 30 years, with the full knowledge, consent, and acquiescence of appellants and their grantors, immediate and remote, and under a claim of right on the part of appellee, which claim has been open, notorious, and exclusive, by reason of which appellee has acquired an easement to continue the discharging of the water collected into the channel. That on May 15, 1913, appellants wrongfully and unlawfully constructed a concrete dam across the channel where it enters the land of appellants, with wings extending on either side, some 20 feet in length and about 2 feet high, which obstructs the flow of the water, destroying the use of some 2 or 3 acres of appellee's land lying close to the channel, and that about 5 acres of appellee's corn has been destroyed from backwaters caused by the dam to his damage in the sum of $250. That if the dam was permitted to remain, it would be to appellee's irreparable injury, and that appellants should be ordered to remove it and be forever enjoined from maintaining the same. The first paragraph of complaint, the sufficiency of which is not here questioned, charges appellants with obstructing a natural water course.

[1] Where an easement is used by one whenever he sees proper, without asking permission, and no objection is made thereto, the use is adverse; and an adverse enjoyment and use uninterrupted for 20 years of an easement cannot be afterwards disputed. Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230;Pyott v. State, 170 Ind. 118, 83 N. E. 737;Walley v. Wiley, 56 Ind. App. 171, 104 N. E. 318;Seigmund v. Tyner, 52 Ind. App. 581, 101 N. E. 20.

In the latter case, it was said in considering the sufficiency of an answer that pleaded a right by prescription:

“Its averments show that said drains were constructed and in use by and with the consent of all owners of said lands long before appellant purchased his real estate; that he purchased with full knowledge of the same and of appellee's easement, or right to flow water across his said lands. Under the authorities the answer states a good defense to appellant's complaint.”

In Mitchell v. Bain, supra, the following language is made use of:

“Such enjoyment without explanation how it began is presumed to have been in pursuance of a grant. The owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract, inconsistent with a claim of right by the other party.”

Construing the allegations of appellants' second paragraph of complaint in the light of the authorities, it is clear, we think, that it is sufficient to withstand a demurrer for want of facts.

The special finding of facts discloses, among other things, that appellee and certain other persons are the owners of lands in Sullivan county, which are productive, being improved by drainage, the natural drainage being to the southwest; that before the lands in this neighborhood were improved by drainage and while in their original state, there was a low trough or swale extending in a northeasterly and southwesterly direction for a distance of about two miles; that starting some distance above appellee's real estate, said trough or swale extends across the intervening lands and across the lands of appellee and a small portion of appellants, and into this trough or swale a large body of water gathered during the rainy seasons of the year and for from 6 to 9 months each year, and from time immemorial the water thus collected moved in a sluggish current to the southwest across the lands between the starting point and its terminus, which terminus was some distance below appellants' land in a gravel pit, where by the process of percolation it disappeared; that on the Woodward land some distance above appellee's land there is a well-defined channel with bed and banks which was cut through the turf by erosion of the water and through which the water has flowed as it has been gathered into the trough or swale in this locality; that there is now and has been for more than 20 years a...