[6] Assignment of error No. 7 challenges , sufice to say that it was appellants' theory, the action of the court in dismissing the and they offered evidence for the purpose of cross-complaint as to Alfred Hogston. Al. proving, that when the several suits were fred Hogston was not a proper party to the brought which finally resulted in the judgcross-complaint, which sought to set aside ments in dispute, the guardian of said ward the five judgments heretofore referred to. employed an attorney to defend said actions, He was not a party to any of said judg- and that through the influence and connipments and could have no interest in any ac- ance of Alfred Hogston and the plaintiffs in tion contesting their validity. The cross- said suits said attorney and the guardian complaint alleged that said judgments were made no defense thereto, and that the acobtained by fraud and that he participated tions of said parties amounted to fraud. in and aided said fraud, but no relief was It appears from the evidence that these asked or could be obtained against him in appellants employed other attorneys to de said cross-action. He had no interest in the fend said actions. The evidence is then concontroversy adverse to the cross-complain- ficting as to whether the attorneys emants and was not a necessary party to the ployed by appellants withdrew from the cascomplete determination of the questions in- es because the guardian would not agree to volved. Section 269, Burns' 1914.

pay for their services or because the guard[6] Since the pleading not only was not ian and his attorney would not permit them sufficient as to him, but could not by amend- to appear. ment have stated a cause of action against The guardian filed answers in said suits, him, no harm was done appellants in dis- including pleas of non est factum, want of missing the same as to him. Wilson v. Tev- consideration, and duress. The evidence is is (1916) 184 Ind. 712, 111 N. E. 181.

conflicting as to how much effort said guard[7] Assignment of error No. 8 challenges ian and his attorney made to secure evithe action of the court in dismissing the dence to sustain the answers filed, but there cross-complaint as to the Citizens' Trust & is evidence from which the court could well Savings Company. The only allegation re- find that a good-faith defense was made, lating to said company was that a false or There was substantial evidence tending to spurious note purporting to have been signed support the finding. There was also eviby the decedent had been sold by Richard dence, which, if believed by the trial court, A. IIogston to said company. It is not al- would have required a different finding. Unleged that said note had been filed or al- der such circumstances, this court cannot lowed as a claim against said estate, and the disturb the judgment. holder of a claim which had not been al

The judgment is affirmed. lowed would certainly not be a proper party to the cross-complaint. If the holder of a EWBANK, C. J., not participating. note which is invalid for any reason files it as a claim and undertakes to enforce it, the statute makes ample provision for litigating the question of its validity. Section 2814, Burns' 1914. There was no error in sustain- SEYMOUR WATER CO. v. LEBLINE. ing the motion to dismiss as to said trust

(No. 24672.) company.

Assignment of error No. 9 challenges the (Sụpreme Court of Indiana. May 15, 1924.) action of the court in dismissing the cross

1. Waters and water courses om 179(1)-Comcomplaint as to Thos. D. Barr. The only al

plaint for flooding land held good as against legation as to said Barr is that Alfred Hogs

demurrer. ton claimed to have sold a note signed by

General allegations of complaint for floodthe decedent to said Barr. For the reasons ing of plaintiff's land caused by dam that plaingiven under assignment No. 8, above, there tiff was owner of land, and that flow of water

in dismissing the cross- had been obstructed unlawfully, and without complaint as to said Barr.

right, to plaintiff's damage, were sufficient as [8] Assignment of error No. 10 challenges against demurrer. the action of the court in overruling the mo- 2. Appeal and error Ow960(1) Requiring tion for a new trial. The only proposition

plaintiff to furnish abstract of title discreor statement of any point in appellants' brief tionary with trial court. relating to this assignment is proposition No. In action for flooding lands overruling mo16 in the brief, that the finding of the court tion to require plaintiff to file abstract of title is not sustained by sufficient evidence. Un- held not cause for reversal, in absence of abuse der this proposition appellants say that the of discretion. theory of the partial answer and the cross- 3. Pleading 367(6)—Refusal to require abcomplaint is that the five judgments were

stract of title held not abuse of discretion. obtained by fraud, and they claim that the

In action for flooding land, refusal of trial evidence showed such fraud. Without tak- court to require plaintiff to furnish abstract of ing the space to set out the evidence, it will title held not abuse of discretion, it not ap

On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes





(144 N.E.) pearing that there was any doubt as to source, tion to make specific by setting out therein of plaintiff's title, nor that defendant was ig- facts on which each averment is based. norant of any facts which would have been shown by abstract.

12. Witnesses 240(5)-Question held objec

tionable as leading and suggestive. 4. Pleading Ow 194(5) Overruling demurrer Party cannot cause statement of what he to argumentative denial not error.

assumes to be facts in issue to be prepared An argumentative denial is denial of what and then testify to them by affirmative answer is alleged in pleading to which it is addressed, to question whether statement is correct; quesand overruling demurrer to it is not error. tion being objectionable as leading and sug

gestive. 5. Easements en 32-When easement extin

guished by occupation by owner of servient 13. Witnesses aww240(2) Leading questions estate stated.

on formal matters and facts not seriously disWhere easement was created by express

puted within trial court's discretion. written contract, lapse of time and occupation Extent to which leading questions may be by owner of servient fee will not extinguish it, permitted with relation to formal matters and unless there was an absolute denial of the facts not seriously in dispute is controlled by right, and occupation was so adverse and hos-trial court's discretion. tile that owner could have maintained action 14. Evidence @mw 151(1)–Testimony by presi. for obstructing enjoyment.

dent as to intent of corporation admissible. 6. Easements Om 30(1)-Intention to abandon Testimony by president of water corpora. necessary element of abandonment.

tion as to its intent with reference to abandonIntention to abandon and put an end to ment of dam held admissible. easement is necessary element of abandonment. 15. Evidence on 151(1)-Witness with knowl. 7. Waters and water

Om 179(1) edge of intent may testify thereto as a fact, Pleading setting up extinguishment by non When intent with which an act is done is user of easement to maintain dam held de- material, witness having knowledge thereof murrable.

may testify to such intent as a fact. In action for flooding plaintiff's land by 16. Trial w255(1)-Omission to give unredefendant's dam, in which defendant alleged

quested instruction seldom cause for reversal. an easement to maintain dam, demurrer to reply alleging nonuser of dam for many years, tion is seldom cause for reversal.

Mere omission to give uprequested instrucbut not averring intention to abandon easement, should have been sustained.

17. Waters and water courses Om 165-Right 8. Waters and water courses En 165Farming

to maintain dam held to pass as appurtenant land held not adverse possession against right

to mill site without special mention in deed. of flowage.

If owners of mill site through whom defend. Where defendants having easement to main. ants derived title acquired right to maintain tain dam and thereby overflow plaintiff's land dam in connection therewith, such right passed did not exercise right for many years, plain- with conveyance of mill site as appurtenance tist's farming his land and raising crops there without special mention in deed. on held not such adverse possession as would 18. Trial Ow244(3)-Instruction that certain set limitations running against right of flow deed conveyed no greater interest than granage.

tor had held erroneous as in disparagement 9. Adverse possession Cm44Rule stated as

thereof. to necessity that possession be continuous Where defendant claimed right to dam as for prescribed period.

appurtenant to its ownership of mill site, inAdverse possession, to ripen into title, struction which singled out intermediate conmust be such as would have exposed possessor veyance of mill site in which dam was not to action because of what was done by him at mentioned, saying that it conveyed no greater any and all times during his 20 years' posses- interest than grantor had, held misleading as sion.

disparagement of such document. 10. Pleading en 406(5)-General averment of 19. Trial em 244 (3) -Instruction held erroneadverse possession held good in absence of ous as singling out evidence and disparagmotion to make specific.

ing it. In absence of motion to make more specific, An instruction on the effect of a particular general averment that continuously for 42 deed on the issue of abandonment of a water years plaintiff had actual, open, notorious, ex- right held erroneous as singling it out and disclusive, and adverse possession of land in which paraging it. defendants claimed right of flowage free from 20. Navigable waters om 1(2)-Legislative acts defendants' use and right sufficiently pleaded title by adverse possession to withstand de

held not to make river navigable stream so murrer, and was not limited in its scope by

that bed did not vest in riparian owners. averment that plaintiff had farmed land.

Legislative acts, declaring Driftwood fork

of White river to be a public highway, held not 11. Pleading em 367(1)-Remedy to confine ef- to make it such navigable stream at dam site

fect of general averments to particular facts involved as that title to river bed never vested also stated is by motion to make specific. in landowners on either side to whom measured

Remedy to confine effect of general aver area outside meander lines was conveyed by ments to particular facts also stated is by mo- United States.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Appeal from Circuit Court, Jackson Coun [2] Overruling a motion to require appelty; Jas. A. Cox, Judge.

lant to file an abstract of his title is comAction by Charles Lebline against the Sey-plained of. Such a motion is addressed to mour Water Company. Judgment for plain the sound legal discretion of the trial court, tiff, and defendant appeals. Transferred

and overruling it could only because for from the Appellate Court under section 1394, reversing the judgment if it were shown that Burns' Ann. St. 1914 (section 10, c. 247, Acts such discretion had been abused to appel1901, p. 567). Reversed, with directions.

lant's prejudice. Phønix Ins. Co. v. Rowe, Superseding opinion of 138 N. E. 787.

117 Ind. 202, 204, 20 N. E. 122.

[3] It does not appear that there was any Montgomery & Montgomery, of Seymour, doubt as to the source of plaintiff's title, nor for appellant. Oren 0. Swails, of Seymour, for appellee. which would have been shown by an ab

that appellant was ignorant of any facts

stract. What meander lines were run to EWBANK, C. J. Appellee, the plaintiff make that section a "fractional section," conbelow, recovered a verdict and judgment taining less than 640 acres, when the land against appellant for $2,011.38, as damages was originally surveyed by the United States for the construction of a dam in the “Drift- government preparatory to selling it to setwood" or east fork of White river, at Rock-tlers, even if shown to be pertinent as havford, near Seymour, Ind., by which the river ing relation to any part of plaintiff's farm, was caused to overtlow some of his land. would not be shown by an abstract of title. Appellant's demurrers to the complaint, and We are not to be understood as holding to each of several paragraphs of reply, were that the complaint for damages tendered an overruled, as was also its motion for a new issue as to plaintiff's title, or that it did not trial, and appellant excepted to each ruling, do so. But, even if it did, no available error and has challenged each of them by a prop- is shown to have been committed by overruler assignment of errors.

ing the motion that he be required to furThe complaint was filed January 10, 1921. nish an abstract. It alleged in very general terms that plain [4] Appellant filed three paragraphs of tiff was the owner of a certain described answer, to which the plaintiff replied by a tract of 77 acres of farm land that bordered general denial, and also by certain affirmaon White river, a short distance above the tive pleas, to which appellant filed demurdam complained of; that in 1917 the de- rers that were overruled. Counsel point out fendant built and had since maintained a that certain of these paragraphs of affirmapermanent dam of stone, gravel, and con- tive reply were "argumentative denials," crete, with wing walls, by which it had and pleaded only facts in denial of whát permanently obstructed the flow of water in was alleged in the answers, of which proof the river, and had caused the level of the could be made under the issue formed by water in that part of the river flowing across the reply of denial, so that a demurrer might plaintiff's land to be raised; that by reason have been sustained to each of them without thereof, when the river was swollen by rains being cause for a reversal. Penn Mut. Life so as to overflow plaintiff's lands, the water | Ins. Co. v. Norcross, 163 Ind. 379, 393, 72 N. was delayed in running off, and was caused E. 132; Nashville, etc., R. Co. v. Johnson, 60 to stand on plaintiff's fields, which were Ind. App. 416, 422, 106 N. E. 1087, 109 N. E. thereby made unfit for cultivation, and un- 912. But an "argumentative denial" is still salable, to plaintiff's damage in the sum of a denial of what is alleged in the pleading $9,000; that the erection and maintenance to which it is addressed, and overruling a of said dam and obstructions was wrongful, demurrer to it is not error, even though susunlawful, and without right, and without taining the demurrer would have been barmthe consent, leave, or license of plaintiff, and less. Heed v. Gummere (Ind. Sup.) 136 N. without the tender or payment of his dain- E. 5. ages.

Appellant's fourth paragraph of answer [1] The only supposed defect in this com- pleaded facts to the effect: plaint suggested by appellant's brief is that That in 1850 and long before then one it fails to state the exact character of plain- Fischli owned the lands now owned by plain. tiff's title, and does not say anything about tiff, and also the lands now owned by appelwhat may have been done by his predeces- lant, with a mill and dam thereon, located sors in title in the matter of granting the where appellant's power house and dam are right to flow his lands by a dam, or submit- now situated. That he died the owner thereting to such filowage for a long series of of. That in 1856 and 1857 his heirs conveyed years. But, in the absence of a motion to to appellant's remote grantor 17 acres of his make the complaint more specific, we think said lands on which the mill and dam were the general allegations that he was the own- situated, "together with the mill and all maer, and that the flow of the water had been chinery, tools and implements appurtenant obstructed unlawfully, and without right, to thereto, and the dwelling houses, stables, his damage as stated, were suflicient to with- and other improvements situated on and stand the demurrer,

belonging to said mill property; also all such

(144 N.E.) right to the bed of the river and the right , sufficient to avoid the answer, pointing out to join said mill dam to the opposite bank that it only alleged nonuser, without averof the river, and all other rights and privi- ring an intention to abandon, or showing leges to said premises," which the grantors that plaintiff's possession was adverse and were competent to convey ; that said lands, hostile during the period of nonuser, was together with said water rights and all privi- overruled, and an exception was reserved. leges and appurtenances to the same belong- Appellee seeks to support the ruling by citing, were by subsequent deeds duly conveyed ing authorities to the effect that, if an easeto defendant (appellant), who is now and for ment was acquired by prescription by con30 years has been the owner and in posses. tinuous use for 20 years, nonuser for a like sion of the same. That, after making said period may be deemed an abandonment of conveyance, the said heirs of Fischli con- such easement. Collett v. Board, 119 Ind. 27, veyed other lands of their ancestor, includ- | 32, 21 N. E. 329, 4 I. R. A, 321; Town of ing the tract described in plaintiff's com- Freedom v. Norris, 128 Ind. 377, 382, 27 N. plaint as belonging to him, to plaintiff's re- E. 869; French v. Braintree Mfg. Co., 40 mote grantors by a deed, in writing, which Mass. (23 Pick.) 216; Hazard v. Robinson, 3 contained the following express reservation: Mason, 272, Fed. Cas. No. 6281. But the

rule is different where the easement was "It being hereby understood by this indenture that the above sale has been made upon the ex- created by express grant or reservation, in press condition that the owners of the mill of writing. Town of Freedom v. Norris, 128 Rockford, their heirs and assigns, shall have a Ind. 377, 382, 27 N. E. 869. perpetual right to join the mill dam into the [5] Where the easement was created by shore on the west side of the river opposite express written contract lapse of time and the mill and to do all things in and upon said occupation by the owner of the servient fee bank necessary and proper to secure said will not extinguish it, unless there was an dam from injury, and keep it at all times in absolute denial of the right to the easement, good repair."

and the occupation was so adverse and hos

tile that the owner of the easement could That this deed was duly recorded in 1857 have maintained an action for obstructing in the county where said lands lie, and the his enjoyment of it. Kammerling v. Grover, lands thereby purchased were partitioned 9 Ind. App. 628, 631, 36 N. E. 922; Cleveland, among the grantees in said deed, when the etc., R. Co. v. Griswold, 51 Ind. App. 497, 510, portion now owned by plaintiff was set off 97 N. E. 1030; Perry v. Carey, 68 Ind. App. to his father, as one of them, and be con- 56, 60, 119 N. E. 1010; Vandalia R. Co. v. reyed it to plaintiff. That plaintiff and his Wheeler, 181 Ind. 424, 103 N. E. 1069 ; State said grantors back to the year of 1857 took v. Suttle, 115 N. O. 784, 788, 20 S. E. 725; Butand have held title to said lands, subject to terfield v. Reed, 160 Mass. 361, 35 N. E. 1128; said dam privilege and water easement, and Edgerton v. McMullen, 55 Kan. 90, 39 Pac. with knowledge thereof, and that at the time 1021; Gassert v. Noyes, 18 Mont. 216, 44 Pac. said conveyances were executed with the 959; Lindeman v. Lindsey, 69 Pa. 93, 8 Am. reservations as set out the mill was a go- Rep. 219; Haigh v. Lenfesty, 239 Ill. 227, 87 ing concern, operated by water power devel- N. E. 962; note, 1 A. L R. 884 et seq., and oped from a dam of a height stated, across numerous authorities cited. the bed of the river at the same place where

[6,7] Of course it is possible for a comdefendant's dam is now located, which plete discontinuance of all use of an easethrew the waters of said river back upon ment, even though created by express grant, the lands described in the complaint to a with the intention thereby wholly to abanheight and depth greater than that existing don it, to constitute such a surrender as at the time the complaint was filed.

will terminate the easement. But an intenPlaintiff's second paragraph of reply to tion to abandon and put an end to it is a this answer alleged that the mill which stood necessary element of such abandonment, and on defendant's lands at the time they were for lack of an averment that the appellant conveyed by the heirs of John Fischli to the or its grantors had such an intention the reremote grantors of appellant in 1856 was ply under consideration failed to state a afterward burned and completely destroyed, cause of defense on the theory of abandonwashed away, and suffered to fall into decay ment. Butterfield v. Reed, 160 Mass. 361, 35 in the year 1875, so that thereafter plain-N. E. 1128; Gassert v. Noyes, 18 Mont. 216, tiff's lands were not flooded or injured by 219, 44 Pac. 959; McArthur v. Morgan, 49 the dam until in 1917, and that during all Conn. 347, 350; Hatton v. Cale, 152 Iowa, of the 42 years intervening defendant and 485, 494, 132 N. W. 1101; Barnett v. Dickinits said grantors failed to use and com

son, 93 Md. 258, 267, 48 Atl. 838; Armstrong pletely and wholly abandoned said mill and v. Lehigh, etc., R. Co., 82 N. J. Law, 704, 706, dam, and without interruption ceased to 82 Atl, 899; Snell v. Levitt, 110 N. Y. 595, flood or damage by water or otherwise the 602, 18 N. E. 370, 1 L R. A. 414; Hennessy v. lands of plaintiff described in his complaint. Murdock, 137 N. Y. 317, 325, 33 N. E. 330; A demurrer to this paragraph of reply for Adams v. Hodgkins, 109 Me. 361, 366, 84 Atl. the alleged reason that it did not state facts 530, 42 L. R. A. (N. S.) 741; Swain v. Webre,

144 N.E.3.


106 LA. 161, 166, 30 South. 331; Sweezy v. plaint, which also pleaded title by adverse Vallette, 37 R. I. 51, 54, 90 Atl. 1078; Par-possession, substantially in the language of king v. Dunham, 3 Strob. (S. C.) 224, 228; the paragraph above set out. Scott v. Moore, 98 Va. 668, 686, 37 S. E. 342, [12, 13] While plaintiff was testifying as a 81 Am. St. Rep. 749; Wendler, v. Woodard, witness in his own behalf he was shown 93 Wash. 684, 688, 161 Pac. 1043. For the what purported to be a plat of his farm, in reasons given, the demurrer should have several different colors, with many lines been sustained to the second paragraph of drawn on it, and figures which a surveyor reply to the sixth paragraph of answer. who said he made it had testified showed the

[8-11] The third paragraph of reply to the elevation above sea level at different points, same answer alleged substantially the same with many words of explanation written facts as the second paragraph, and also al- thereon, including what the writing said was leged that from 1875 until 1917 plaintiff and indicated by the red color and each of the his grantor continuously, without interrup pale blue and dark blue colors, respectively, tion, had and enjoyed actual, open, continu- that extended on either side of the red colorous, notorious, exclusive, and adverse posses-ing, as to the extent of the overflow, and sion and use, under claim and color of title, was asked the following question : to all his said described real estate, free from

"I will hand you Plaintiff's Exbibit B, which and adverse and hostile to any and all right indicates certain blue marks, and ask you to and use whatever of defendant and its gran- tell the jury whether that approximately repretors to flood or flow water back upon said sents the shape of that wet strip?" lands or to make any use thereof whatever, und that during all of said 42 years he and Appellant's objection on the ground that his grantors had used said real estate for the question was leading and suggestive was farming purposes, and had raised corn and overruled, and it excepted. The objection hay and other farm products thereon, and should have been sustained. A party may had cultivated said land free from any over- not cause an elaborate statement of what he fow or use whatever by defendant or its assumes to be the facts in issue to be pregrantors. Appellant is correct in its conten- pared by an expert, and then testify to those tion that merely farming the land, and rais- facts by merely giving an affirmative aning thereon corn and hay and other farm swer to the question whether or not the stateproducts, did not constitute such adverse ment so prepared is correct, instead of tespossession as would set the statute of limi- tifying to his own independent knowledge of tations to running against the right of flow- the subject, in answer to questions asking age by rebuilding the dam. Such cultivation for what he knows as to each fact. Queswas not inconsistent with the continued tions should not be asked by which the atright of flowage. Adverse possession, to rip torney puts into the mouth of the witness en into title, must be such as would have ex-evidence which he desires to have given, and posed the possessor to an action because of the witness merely assents to it. But the what was done by him at any and all times extent to which leading questions may be during the 20 years that his possession contin- permitted with relation to formal matters ued. State v. Suttle, 115 N. C. 784, 788, 20 s. and facts not seriously in dispute is control. E. 725; Butterfield v. Reed, 160 Mass. 361, 35 led by the sound legal discretion of the trial N. E. 1128; Parkins v. Dunham, 3 Strob. (S. court, and we do not find it necessary to deC.) 224. But, in the absence of a motion to cide whether such an abuse of discretion is make the pleading more specific, the general shown in this case as would be cause for reaverment that continuously for 42 years the versing the judgment, since it must be re plaintiff had and enjoyed actual, open, no versed for other reasons. torious, exclusive, and adverse possession of (14, 15) A witness testified that he was the land free from and hostile to all right and for the past three years had been the and use of the defendant sufficiently plead-president of the appellant corporation, and ed title by adverse possession to withstand had been connected with it "ever since its a demurrer, and was not limited in its scope organization, over 30 years;" and, after hav. by the further averment that plaintiff had ing been called by plaintiff to testify, and farmed the land. The remedy to confine the having testified that the company then ineffect of general averments in a pleading to tended to maintain the dam permanently, he particular facts also stated is by a motion

was called by appellant as a witness, and to require the pleading to be made specific was asked what had been the intention and by setting out therein the facts on which purpose of the company in the 30 years since

the mill site and dam privilege were conveyeach general averment is based. Terre

ed to it "with regard to abandoning or givHaute, etc., R. Co. v. Phillips, 191 Ind. 374, ing up that water privilege ?" An offer was 132 N. E. 740, 742; Lake Erie, etc., R. Co. v. made of testimony in answer to the question Molloy (Ind. App.) 134 N. E. 913, 915. For that the management and officers at no time the same reason it was not error to over- had intended to abandon or give up this warule the demurrer to the third paragraph of ter privilege, but an objection was sustained, reply to appellant's sixth paragraph of com- and the witness was not permitted to answer.

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