Wabash Railroad Co. v. Jackson

• Decision Date: 09 June 1911
• Docket Number: 21,727
• Parties: Wabash Railroad Company v. Jackson et al
• Court: Indiana Supreme Court

95 N.E. 311

176 Ind. 487

Wabash Railroad Company v. Jackson et al

No. 21,727

Supreme Court of Indiana

June 9, 1911

Rehearing Denied November 22, 1911, Reported at: 176 Ind. 487 at 492.

From Wabash Circuit Court; A. H. Plummer, Judge.

Drainage petition by William A. Jackson and others against which the Wabash Railroad Company remonstrates. From a judgment for petitioners, remonstrant appeals.

Affirmed.

E. P Hammond, Dan W. Simms, William V. Stuart, Allison E. Stuart and J. D. Conner, Jr., for appellant.

Joseph W. Murphy and Walter G. Todd, for appellees.

OPINION

Myers, J.

Appellees filed a petition in the Wabash Circuit Court, under the act of 1907 (Acts 1907 p. 508, § 6140 et seq. Burns 1908), asking that certain lands in that county be drained by a public drain. Over the remonstrance of appellant, said drain was established so that it crossed appellant's right of way. 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, at its own cost and expense construct a bridge twelve feet high and twenty-four feet wide. Various lands, lots and a public highway would 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 railway was constructed in 1854 with a fill; that where the proposed drain crosses the right of way the fill was twenty-two feet high, fourteen feet wide on top, and eighty feet wide at its base, at which point, in 1881, appellant constructed a stone culvert four feet and one inch wide at the bottom, and the same width to the height of three feet, and for the next two feet, eleven and a half inches wider, the total height being five feet, one inch. This culvert is called No. 440. At a point about eight hundred feet southwest is culvert No. 441, constructed when the railroad 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 three hundred feet southwest of culvert No. 441, and the stream was diverted through that culvert, which was of stone, eight feet wide at the bottom and four feet high. This culvert was replaced in 1902 by a cast-iron pipe five feet in diameter. The natural stream has its source in hills some two and a half miles northwest of 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 southeast of 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 in the proposed drain, which is partly in the channel of the old creek, but diverges from it at its greatest distance four hundred feet, and will be of the average width of four feet in the bottom, twelve feet at the top, and of the average depth of four feet, and runs over a portion of the ditch constructed by James Jackson, connecting with culvert No. 440. After the construction of said ditch, Jackson ploughed 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 the culverts have not been sufficient to carry off the waters of Jackson creek, and in times of heavy rains the water backs up at the railway embankment, and runs southeasterly over a public highway, and into the houses of residents of the town of Rich Valley, and covers the highway and remains 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 seventeen feet long and eight feet high will be sufficient to carry off the water.

As conclusions of law the court established the ditch and required the construction of the culvert by appellant at its own expense, which it is found will be $ 8,000, as against $ 10,000, the cost of a culvert recommended by the commissioners of drainage.

It is urged by appellant that the cost of the...