Vandalia R. Co. v. House

• Decision Date: 13 May 1915
• Docket Number: No. 8587.,8587.
• Citation: 59 Ind.App. 10,108 N.E. 872
• Parties: VANDALIA R. CO. v. HOUSE.
• Court: Indiana Appellate Court

59 Ind.App. 10

108 N.E. 872

VANDALIA R. CO.

v.HOUSE.

No. 8587.

Appellate Court of Indiana, Division No. 2.

May 13, 1915.

Appeal from Circuit Court, Knox County; B. M. Willoughby, Judge.

Action by James M. House against the Vandalia Railroad Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Samuel O. Pickens, Owen Pickens, and John G. Williams, all of Indianapolis, for appellant. Wm. H. Hill and James M. House, both of Vincennes, for appellee.

IBACH, J.

In the first paragraph of complaint against appellant, a railroad company, appellee averred that he was the owner in fee of certain lands in donation 143, Knox county, Ind., through which appellant had a right of way; that appellant had collected surface waters from its lands in artificial channels and conducted them on appellee's lands, causing a great ditch to be dug out and washed on his lands, to his damage; that appellant would continue to cast waters so collected upon his lands at each recurring rain or season of wet weather, to his damage and injury, unless restrained from so doing. He asked for damages and an injunction. His second paragraph of complaint averred similar facts relating to lands owned by appellee in donation 147, Knox county.

The court found the facts substantially as alleged in the first paragraph of complaint, including findings that a large ditch had been washed out on appellee's lands, and that the waters, after reaching the foot of a hill through said large ditch, spread out over and damaged three acres of bottom land. He found that the rental value of the lands was thereby lessened, and that the fee was also damaged, and rendered conclusions of law allowing damages to appellee for loss of rental value, and for damages to the fee, and enjoining appellant permanently from collecting and throwing surface water on appellee's lands. Substantially the same findings and conclusions of law were made as to the second paragraph of complaint.

[1] It is first argued by appellant that the finding as to the first paragraph of complaint is not sustained by sufficient evidence and is contrary to law, because the evidence shows that the water complained of had flowed in the same manner for more than 20 years, and thus appellant acquired prescriptive rights to discharge surface water from its right of way on appellee's lands. But on this point the evidence is conflicting. The testimony of appellant's witnesses would tend to show that the water had been collected and thrown on appellee's lands in the same manner for a length of time...