Walley v. Wiley

• Decision Date: 25 February 1914
• Docket Number: No. 8215.,8215.
• Citation: 56 Ind.App. 171,104 N.E. 318
• Parties: WALLEY v. WILEY et al.
• Court: Indiana Appellate Court

56 Ind.App. 171

104 N.E. 318

WALLEY

v.WILEY et al.

No. 8215.

Appellate Court of Indiana, Division No. 2.

Feb. 25, 1914.

Appeal from Circuit Court, De Kalb County; Emmett A. Bratton, Judge.

Action by William Walley against James C. Wiley and others. Judgment for defendants, and plaintiff appeals. Affirmed.John G. Yeagley, of South Bend, for appellant. W. F. McNagny, of Columbia City, and J. H. Rose, of Ft. Wayne, for appellees.

IBACH, J.

Appellant brought this action against appellees to recover damages. Each of the three paragraphs of complaint charged in substance that the plaintiff owned lands in the vicinity of the lands owned by the defendants, and that such defendants collected large quantities of water from off their lands, and cast such water upon the lands of plaintiff, causing the same to become valueless for farming purposes, to plaintiff's great damage. To the complaint the defendants filed answer in three paragraphs; but we are required only to consider the action of the trial court in overruling plaintiff's demurrer to the second of these paragraphs. The trial resulted in a general verdict for the defendant, and, over a motion for a new trial, there was judgment in their favor.

The second paragraph of answer, omitting the formal parts, contains the following averments: “The lands owned by the plaintiff are naturally low, wet, and swampy, *** and no part of said lands has been brought under cultivation until recently. That the said lands owned by the defendants lie west of plaintiff's said lands, and upon a higher level, and that the surface of the country gradually slopes from their lands downward to those of the plaintiff, and that defendants' lands have been under cultivation for more than 40 years last past. That from time immemorial there has existed a natural water course leading from the defendants' said lands eastward, onto and across the said lands of the plaintiff. That said natural water course has had for more than 30 years a well-defined channel and banks, and that, by reason of the lay of the country, the water flowing therein has for said time naturally flowed in said channel away from the defendants' said lands, onto and across plaintiff's said lands. That said natural water course for more than 30 years has carried the surface water which accumulated on defendants' lands, and on lands adjacent thereto, and water poured into said channel by other water courses on defendants' said lands, and by numerous artificial drains constructed thereon, eastward onto and across plaintiff's said lands. And the defendants further say that for more than 30 years preceding the commencement of this suit they and their immediate and remote grantors under whom they claim to hold their title to said lands, so severally owned by them, have used said natural water course, and are now so using the same, as a channel to drain off the surplus water from their said lands, and water discharged into said channel by other natural water courses, and by many artificial ditches constructed on their said lands, onto and across plaintiff's lands, and that they and their said grantors have so used said natural water course for said period of time under a claim of right to do so made by the defendants and by their said grantors, and that during all of said time said use of said water course has been adverse to the plaintiff and his immediate and remote grantors under whom he claims title to said lands, and said use has been exclusive to the defendants and their said grantors, and continuous and wholly uninterrupted. That said use of said natural water course during all of said time has been with the knowledge of the plaintiff and his said grantor, and also with their knowledge that the defendants and their said grantors claimed the right to perpetually so use the same, and were so using the same, during all of said time adversely to the plaintiff and his said grantors. That said use of said water course by defendants is the identical trespass and injury to plaintiff described in his complaint, and for which he therein demands judgment for damages, and not otherwise, and that the defendants and neither one of them has in any other way, manner, or form caused any water to flow onto or across plaintiff's said lands. Wherefore, the defendants separately demand judgment against the plaintiff.”

[1][2] Appellant demurred to this paragraph for insufficiency of facts to constitute a defense, but now earnestly contends that it contains two distinct theories, one being that they were making a rightful use of a natural water course, and the other that they had acquired this right by prescription to cause the waters from off their lands to flow onto plaintiff's, and that such attempt to combine two distinct theories in a single paragraph of answer is in direct violation of the rule against duplicity.

The briefs fail to disclose a motion by appellant to require appellee to separate the two defenses into paragraphs, so that this court is not required to consider the objection urged where the demurrer filed is alone for want of sufficient facts. Nesbit v. Miller, 125 Ind. 106, 25 N. E. 148;Pittsburgh R. Co. v. Brown, 178 Ind. 11, 97 N. E. 145, 148, 98 N. E. 625. And, even if such motion had been filed, it is not reversible error for the trial court to overrule a motion to separate into paragraphs a pleading on account of duplicity. Shaw v. Ayers, 17 Ind. App. 615, 618, 47 N. E. 235, and cases there cited; Everitt v. Bassler, 25 Ind. App. 303, 304, 57 N. E. 560.

[3] It is proper to state, however, that, although the paragraph discloses more than one fact or circumstance which gives them a legal right to do the acts charged against them in the several paragraphs of complaint, yet these averments are all so pleaded as to clearly indicate that the pleader intended to charge but one complete defense, namely, a justification of the trespass charged against defendants. Had the answer been attacked in the court below, as it is assailed here, we could not uphold appellant's contention, for it does no violence to the definite theory rule. Caldwell v. Bauer (Sup.) 99 N. E. 117, 124.

Error is also assigned in the giving of a number of instructions at the request of appellee.

In support of the answer, the evidence shows that appellees' land is higher than appellant's, and has been drained for more than 30 years by a natural water course which runs through appellees' lands to and over appellant's land; that on appellant's land as a part of such natural water course there was a swamp,...