Wabash R. Co. v. Jackson

• Decision Date: 09 June 1911
• Docket Number: No. 21,727.,21,727.
• Citation: 95 N.E. 311,176 Ind. 487
• Parties: WABASH R. CO. v. JACKSON et al.
• Court: Indiana Supreme Court

176 Ind. 487

95 N.E. 311

WABASH R. CO.

v.JACKSON et al.

No. 21,727.¹

Supreme Court of Indiana.

June 9, 1911.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Drainage proceeding by William A. Jackson and others against the Wabash Railroad Company. From the judgment, the company appeals. Affirmed.

Stuart, Hammond, Simms & Stuart and J. D. Conner, Jr., for appellant. Murphy & Todd, for appellees.

MYERS, J.

Appellees filed a petition in the Wabash circuit court under the act of 1907 (Burns 1908, § 6141 et seq.) for the drainage of certain lands in that county by a public drain. Such proceedings were had that the drain was established over the remonstrance of appellant, the right of way of which is crossed by the drain. By their report the commissioners of drainage found for the construction of the drain, and the costs and expenses were fixed at $788.52. Benefits and damages were assessed in which appellant was reported as benefited $60 and the assessment against it fixed at $50, but in their report, the commissioners recommended that appellant construct a bridge at its own cost and expense 12 feet high and 24 feet wide. Various lands, lots, and a public highway were reported as to be affected by the construction of the proposed drain, and all were reported as benefited in amounts in excess of the assessments for construction. Upon remonstrance by appellant a special finding of facts was made and conclusions of law stated. The findings are quite lengthy, but they show that the railroad was constructed in 1854 with a fill; that at the point where the proposed drain crosses the right of way it was 22 feet high and 14 feet wide on top and 80 feet wide at its base, at which point, in 1881, appellant constructed a stone culvert 4 feet and 1 inch wide at the bottom, and the same width to the height of 3 feet, and for the next 2 feet, 11 1/2 inches wide, the total height being 5 feet 1 inch; this culvert is called No. 440. At a point about 800 feet southwesterly is culvert 441 which was constructed when the line was built. A natural stream approaches the railroad from the northwest called Jackson creek; when the railway was constructed that stream crossed in a state of nature about 300 feet southwesterly of culvert No. 441, and the stream was diverted through that culvert, which was of stone, 8 feet wide at the bottom, 4 feet high, and was replaced in 1902 by a cast iron pipe 5 feet in diameter. The natural stream has its source in hills some 2 1/2 miles northwesterly from the railway crossing. Soon after the construction of culvert No. 440, which was at a point where there was no waterway prior thereto, one Jackson, father of some of the appellees, constructed a ditch southeasterly from Jackson creek to, and through, culvert No. 440. It is found that culvert No. 440 on the line of the proposed drain will not in times of high water be sufficient to conduct the water which will flow into the proposed drain, which is partly in the channel of the old creek, but diverges from it at its greatest distance 400 feet, and will be of the average width of 4 feet in the bottom, 12 feet at the top, and of the average depth of 4 feet and runs over a portion of the ditch constructed by James Jackson connecting with culvert No. 440, after the construction of which ditch he plowed and filled up Jackson creek proper from a point 238 feet north of culvert No. 441 and caused the water of Jackson creek to flow through culvert No. 440.

It is found that since the construction of the railway grade none of the culverts have been sufficient to carry the waters of Jackson creek, and in times of heavy rains the water backs up at the railway embankment, and runs southwesterly over a public highway, and into the houses of residents of the town of Rich Valley, and covering the highway and remaining in the houses five or six hours at a time. All necessary facts authorizing the establishment of the drain are found, but the court found that a culvert 17 feet...