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(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 L. 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 remote grantors by a deed, in writing, which contained the following express reservation: "It being hereby understood by this indenture that the above sale has been made upon the express condition that the owners of the mill of Rockford, their heirs and assigns, shall have a perpetual right to join the mill dam into the shore on the west side of the river opposite the mill and to do all things in and upon said bank necessary and proper to secure said dam from injury, and keep it at all times in good repair."

That this deed was duly recorded in 1857 in the county where said lands lie, and the lands thereby purchased were partitioned among the grantees in said deed, when the portion now owned by plaintiff was set off to his father, as one of them, and he conveyed it to plaintiff. That plaintiff and his said grantors back to the year of 1857 took and have held title to said lands, subject to said dam privilege and water easement, and with knowledge thereof, and that at the time said conveyances were executed with the reservations as set out the mill was a going concern, operated by water power developed from a dam of a height stated, across the bed of the river at the same place where defendant's dam is now located, which threw the waters of said river back upon the lands described in the complaint to a height and depth greater than that existing at the time the complaint was filed.

Plaintiff's second paragraph of reply to this answer alleged that the mill which stood on defendant's lands at the time they were conveyed by the heirs of John Fischli to the remote grantors of appellant in 1856 was afterward burned and completely destroyed, washed away, and suffered to fall into decay in the year 1875, so that thereafter plaintiff's lands were not flooded or injured by the dam until in 1917, and that during all of the 42 years intervening defendant and its said grantors failed to use and completely and wholly abandoned said mill and dam, and without interruption ceased to flood or damage by water or otherwise the lands of plaintiff described in his complaint. A demurrer to this paragraph of reply for the alleged reason that it did not state facts 144 N.E.-3.

E. 869; French v. Braintree Mfg. Co., 40 Mass. (23 Pick.) 216; Hazard v. Robinson, 3 Mason, 272, Fed. Cas. No. 6281. But the rule is different where the easement was created by express grant or reservation, in writing. Town of Freedom v. Norris, 128 Ind. 377, 382, 27 N. E. 869.

[5] Where the easement was created by express written contract lapse of time and occupation by the owner of the servient fee will not extinguish it, unless there was an absolute denial of the right to the easement, and the occupation was so adverse and hostile that the owner of the easement could have maintained an action for obstructing his enjoyment of it. Kammerling v. Grover, 9 Ind. App. 628, 631, 36 N. E. 922; Cleveland, etc., R. Co. v. Griswold, 51 Ind. App. 497, 510, 97 N. E. 1030; Perry v. Carey, 68 Ind. App. 56, 60, 119 N. E. 1010; Vandalia R. Co. v. Wheeler, 181 Ind. 424, 103 N. E. 1069; State v. Suttle, 115 N. C. 784, 788, 20 S. E. 725; Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Edgerton v. McMullen, 55 Kan. 90, 39 Pac. 1021; Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959; Lindeman v. Lindsey, 69 Pa. 93, 8 Am. Rep. 219; Haigh v. Lenfesty, 239 Ill. 227, 87 N. E. 962; note, 1 A. L. R. 884 et seq., and numerous authorities cited.

[6, 7] Of course it is possible for a complete discontinuance of all use of an easement, even though created by express grant, with the intention thereby wholly to abandon it, to constitute such a surrender as will terminate the easement. But an intention to abandon and put an end to it is a necessary element of such abandonment, and for lack of an averment that the appellant or its grantors had such an intention the reply under consideration failed to state a cause of defense on the theory of abandonment. Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Gassert v. Noyes, 18 Mont. 216, 219, 44 Pac. 959; McArthur v. Morgan, 49 Conn. 347, 350; Hatton v. Cale, 152 Iowa, 485, 494, 132 N. W. 1101; Barnett v. Dickinson, 93 Md. 258, 267, 48 Atl. 838; Armstrong v. Lehigh, etc., R. Co., 82 N. J. Law, 704, 706, 82 Atl. 899; Snell v. Levitt, 110 N. Y. 595, 602, 18 N. E. 370, 1 L. R. A. 414; Hennessy v. Murdock, 137 N. Y. 317, 325, 33 N. E. 330; Adams v. Hodgkins, 109 Me. 361, 366, 84 Atl. 530, 42 L. R. A. (N. S.) 741; Swain v. Webre,

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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 kins v. Dunham, 3 Strob. (S. C.) 224, 228; the paragraph above set out. Scott v. Moore, 98 Va. 668, 686, 37 S. E. 342, 81 Am. St. Rep. 749; Wendler, v. Woodard, 93 Wash. 684, 688, 161 Pac. 1043. For the reasons given, the demurrer should have been sustained to the second paragraph of reply to the sixth paragraph of answer.

[8-11] The third paragraph of reply to the same answer alleged substantially the same facts as the second paragraph, and also alleged that from 1875 until 1917 plaintiff and his grantor continuously, without interruption, had and enjoyed actual, open, continuous, notorious, exclusive, and adverse possession and use, under claim and color of title, to all his said described real estate, free from and adverse and hostile to any and all right and use whatever of defendant and its grantors to flood or flow water back upon said lands or to make any use thereof whatever, und that during all of said 42 years he and his grantors had used said real estate for farming purposes, and had raised corn and hay and other farm products thereon, and had cultivated said land free from any overfow or use whatever by defendant or its grantors. Appellant is correct in its contention that merely farming the land, and raising thereon corn and hay and other farm products, did not constitute such adverse possession as would set the statute of limitations to running against the right of flowage by rebuilding the dam. Such cultivation was not inconsistent with the continued right of flowage. Adverse possession, to rip en into title, must be such as would have exposed the possessor to an action because of what was done by him at any and all times during the 20 years that his possession continued. State v. Suttle, 115 N. C. 784, 788, 20 S. E. 725; Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Parkins v. Dunham, 3 Strob. (S. C.) 224. But, in the absence of a motion to make the pleading more specific, the general averment that continuously for 42 years the plaintiff had and enjoyed actual, open, no torious, exclusive, and adverse possession of the land free from and hostile to all right and use of the defendant sufficiently pleaded title by adverse possession to withstand 2. demurrer, and was not limited in its scope by the further averment that plaintiff had farmed the land. The remedy to confine the effect of general averments in a pleading to particular facts also stated is by a motion to require the pleading to be made specific by setting out therein the facts on which each general averment is based. Terre Haute, etc., R. Co. v. Phillips, 191 Ind. 374, 132 N. E. 740, 742; Lake Erie, etc., R. Co. v. Molloy (Ind. App.) 134 N. E. 913, 915. For the same reason it was not error to overrule the demurrer to the third paragraph of reply to appellant's sixth paragraph of com

[12, 13] While plaintiff was testifying as a witness in his own behalf he was shown what purported to be a plat of his farm, in several different colors, with many lines drawn on it, and figures which a surveyor who said he made it had testified showed the elevation above sea level at different points, with many words of explanation written thereon, including what the writing said was indicated by the red color and each of the pale blue and dark blue colors, respectively, that extended on either side of the red coloring, as to the extent of the overflow, and was asked the following question:

"I will hand you Plaintiff's Exhibit B, which indicates certain blue marks, and ask you to tell the jury whether that approximately represents the shape of that wet strip?"

Ques

Appellant's objection on the ground that the question was leading and suggestive was overruled, and it excepted. The objection should have been sustained. A party may not cause an elaborate statement of what he assumes to be the facts in issue to be prepared by an expert, and then testify to those facts by merely giving an affirmative answer to the question whether or not the statement so prepared is correct, instead of testifying to his own independent knowledge of the subject, in answer to questions asking for what he knows as to each fact. tions should not be asked by which the attorney puts into the mouth of the witness evidence which he desires to have given, and the witness merely assents to it. extent to which leading questions may be permitted with relation to formal matters and facts not seriously in dispute is controlled by the sound legal discretion of the trial court, and we do not find it necessary to decide whether such an abuse of discretion is shown in this case as would be cause for reversing the judgment, since it must be reversed for other reasons.

But the

[14, 15] A witness testified that he was and for the past three years had been the president of the appellant corporation, and had been connected with it "ever since its organization, over 30 years;" and, after having been called by plaintiff to testify, and having testified that the company then intended to maintain the dam permanently, he was called by appellant as a witness, and was asked what had been the intention and the mill site and dam privilege were conveypurpose of the company in the 30 years since ed to it "with regard to abandoning or giv ing up that water privilege?" An offer was made of testimony in answer to the question that the management and officers at no time had intended to abandon or give up this water privilege, but an objection was sustained, and the witness was not permitted to answer.

(144 N.E.)

This was error. The intention with which, in 1874 a judgment was recovered against the corporation acted when it delayed re- her, and an execution thereon was issued building the dam that had washed out, if on which an undivided one-third of the land it did so, was material on the issue of aban- was sold by the sheriff in December of that donment. And when the intent with which year, and that in 1877, pursuant to such sale an act was done is material a witness hav- and purchase, the sheriff executed a deed ing knowledge thereof may testify to such conveying such lands to one of appellant's intent as a fact. Pittsburgh, etc., R. Co. v. remote grantors through whom it derived Noftsger, 148 Ind. 101, 106, 47 N. E. 332; title to the mill site. Counsel for appellant Heap v. Parrish, 104 Ind. 36, 40, 3 N. E. 549; state that this judgment was recovered upon Sedgwick v. Tucker, 90 Ind. 271, 281; Bid foreclosure of a mortgage for unpaid puringer v. Bishop, 76 Ind. 244, 255. The fact chase money, but that fact is not shown by that this witness had been president of the the evidence. A son of Anna Rockstroh was corporation only three years, and that it called by plaintiff as a witness, and testihad not been shown in what capacity he was fied that in 1875 the mill that stood on said "connected with" it during the rest of the real estate burned down, and was not rebuilt, period of 30 years inquired about, went to and that his mother then "moved away to the weight of his proposed testimony, rath- get out of the trouble," and went to Texas, er than its competency. from whence she never returned. The court gave an instruction stating that any sheriff's deed purporting to convey the interest of Anna Rockstroh in any real estate to such person could not convey a greater interest or right therein than she had owned. As applied to the issue of alleged abandonment of the water right and to the evidence set out above, this instruction was misleading. Nothing which Anna Rockstroh might do toward abandoning the easement in 1875, after the lands and appurtenances had been sold on execution in 1874, could affect the title conveyed by the sheriff's deed to the purchaser at such sale, executed after the year for redemption had expired. And it was error in this manner to single out and disparage that particular item of evidence. Shenkenberger v. State, 154 Ind. 630, 640, 57 N. E. 519.

[16] Appellant complains because the court, while instructing the jury that the burden was upon the plaintiff to prove the material allegations of the complaint before he could recover, and was upon the defendant to prove the material allegations of at least one paragraph of affirmative answer before it could avail itself of the defense pleaded in any such paragraph, failed to read the pleadings to the jury or to give an instruction stating what were the material averments of any of them. Appellant should have prepared a proper instruction and have presented it with a request that it be given. The mere omission to give an instruction that was not asked is seldom, if ever, cause for reversing a judgment.

[17, 18] Instruction No. 17 correctly told the jury that, if the owners of the mill site through whom appellant derived title acquired the right to maintain a dam in connection therewith, such right would pass in any conveyance of the mill site as an appurte nance, without special mention in the deed. Eshelman v. Snyder, 82 Ind. 498, 501, 502; State v. Suttle, 115 N. C. 784, 788, 20 S. E. 725. Instruction No. 5 was inconsistent with the law as so declared, in that it singled out an intermediate conveyance of the mill site in which the dam was not mentioned, concerning which it told the jury that the deed from the grantee named in such deed "conveyed no greater interest or right in said land from said grantee than he himself had." though not materially inaccurate as an abstract proposition of law, this was misleading as a disparagement of the particular item of documentary evidence referred to.

Al

[19] There was evidence that in 1870 one Anna Rockstroh received a conveyance for and became the owner of an undivided interest in the mill site, "with all improvements and appurtenances thereon," and that

[20] We do not think the acts of the Legislature of Indiana cited by appellant which declared the Driftwood fork of White river to be a public highway at this point make it such a navigable stream as that title to the river bed never vested in the owners of the lands on either side of the river to whom the measured area outside of the meandered lines was conveyed by the United States if title would so vest except for those statutes. Neither was there any attempt to prove where those meandered lines were run, nor whether the overflowed lands were within or outside of them.

Other questions discussed by counsel may not arise upon a retrial of the case.

The judgment is reversed, with directions to sustain the demurrer to each second paragraph of reply to each of the fourth and sixth paragraphs of answer, and for further proceedings not inconsistent with this opinion.

MYERS, J., absent.

BAILEY v. STATE. (Supreme Court of Indiana.

(No. 24476.)

June 4, 1924.)

and there being no evidence tending to show that the possession of said liquor was lawful, or that it was kept for any lawful purpose, then the court could find from such 1. Intoxicating liquors 236 (9) Unlawful facts that appellant was engaged in the sale possession of more than gallon intoxicating of such liquors as a beverage. Sections 28, liquor sufficient to sustain finding of de- 35, Acts 1917, p. 31; Boyd v. State fendant's intent to sell as beverage.

Proof that more than a gallon of intoxicating liquor was found in room rented and occupied by accused, in the absence of evidence tending to show that such possession was lawful, is sufficient, under Acts 1917, c. 4, §§ 28, 35, to support a finding that accused was engaged in sale of such liquors as a beverage.

Appeal from Criminal Court, Marion County; Frank Symms, Special Judge.

Charles Bailey was convicted of maintaining a common nuisance, and he appeals. Affirmed.

Clyde C. Karrer and W. W. Hyde, both of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

GAUSE, J. Appellant was charged in an affidavit containing several counts, with various violations of the liquor law. Upon a trial by the court he was found guilty under the count which charged him with maintaining a common nuisance, as defined by section 8356t, Burns' Supp. 1921.

Said section makes it a misdemeanor to maintain or assist in maintaining any room, etc., where intoxicating liquor is sold, manufactured, bartered, or given away in violation of law, or to maintain any place where such liquor is kept for sale, barter, or delivery, and all intoxicating liquor kept in and used in maintaining such a place is declared a common nuisance. The only ruling assigned as error is in the overruling of the motion for a new trial. The only contention of appellant, under such assignment, is that the evidence is not sufficient to sustain the

court's finding. There was evidence from which the court could find that appellant had rented and was occupying a room at 1117 North West street, in the city of Indianapolis; that during such time the police, by virtue of a warrant, searched said premises and found therein 35 gallons of white mule whisky in 5-gallon jugs, 8 pints of whisky, 18 empty 5-gallon jugs, 100 empty bottles, 5 empty 1-gallon jugs, 3 funnels, 1 basket of corks, and a lot of broken glass jugs. The appellant testified that he had never rented the room in question or been in possession of the same, but upon this issue of fact the court found against him.

Since more than a gallon of intoxicating liquor was found in such room, and there being evidence which justified the court in finding that appellant was in possession thereof,

Sup.) 143 N. E. 355.

(Ind. It follows that there was evidence tending to prove all necessary elements of the crime charged, and, as we cannot weigh conflicting evidence, we cannot disturb the finding.

Judgment affirmed.

In re MILLER. (No. 24084.)

(Supreme Court of Indiana. June 3, 1924.)

1. Habeas corpus 113(2)-Sheriff proper party on appeal where writ directed against him below.

Where habeas corpus was brought against the sheriff who claimed the right by virtue of process to imprison petitioner, such officer is a proper party on appeal.

2. Appeal and error 327 (2)-Where all parties to judgment below not before court, cause cannot be determined.

Under rule 6, where all parties to the judgment appealed from are not before the Appellate Court, the cause cannot be determined.

Appeal from Circuit Court, Wabash County; Nelson G. Hunter, Judge.

Habeas Corpus by Ben Miller for release in custody. From a judgment denying the writ, the petitioner appeals. Transferred from appellate court under section 1397, Burns' Ann. St. 1914. Appeal dismissed.

Q. A. Milliner, of Wabash, for appellant.

GAUSE, J. The petitioner, Ben Miller, filed his petition in the court below alleging that he was unlawfully restrained of his liberty by Elmer Vrooman, the sheriff of Wabash county, by virtue of a pretended judgment of the city court of Wabash, Ind., and said petition then sets out wherein it is claimed said restraint is illegal.

A writ was issued directed to said Elmer Vrooman to produce said petitioner in court at a designated time. Said sheriff filed a return to said writ, setting forth his alleged authority for holding the petitioner. Upon a trial there was a finding and judgment against the petitioner and that the writ be denied. From such judgment said petitioner prosecutes this appeal.

In this appeal said petitioner has not named any person as appellee. The title, in his assignment of errors, is as follows: "In

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(144 N.E.)

the matter of the petition of Ben Miller for a writ of habeas corpus."

[1] The sheriff, who was alleged to have the custody of the petitioner, was charged with illegally restraining him of his liberty. The action was brought to remedy this alleged wrong. Such officer claimed the right, by virtue of process, to imprison the petitioner. In such a case the officer was a party. He is a proper party on appeal. Nichols v. Cornelius (1856) 7 Ind. 611; Yudkin v. Gates, 60 Conn. 426, 22 Atl. 776; State ex rel. v. Huegin, 110 Wis. 189, 85 N. W. 1046,

62 L. R. A. 700.

[2] Rule six of this court requires that the assignment of errors shall contain the full names of all parties to the judgment. All the parties to the judgment appealed from

Appeal from Superior Court, Madison County; Willis S. Ellis, Judge.

Action by Katie J. Johnson against Edwin J. Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

Arthur C. Call and Diven, Diven & Camp bell, all of Anderson, for appellant. Ellison & Neff, of Anderson, for appellee.

BATMAN, J. Action by appellee against appellant to recover damages for personal injuries, alleged to have been caused by the sulting in a collision between a truck which negligence of an employee of the former, rehe was driving on a public highway and a buggy in which appellee was riding. complaint is in a single paragraph, and the answer thereto is a general denial. The cause was submitted to a jury for trial, re

The

not being before the court, the cause cannot be determined. Big Four B. & L. Ass'n v. Olcott (1896) 146 Ind. 176, 45 N. E. 64; Ew-sulting in a verdict of $7,500, on which a bank's Manual, §§ 126, 149.

The appeal is dismissed.

MILLER v. JOHNSON. (No. 11875.) (Appellate Court of Indiana, Division No. 1. June 3, 1924.)

1. New trial 151-Successful party may file counter affidavits to motion for new trial for newly discovered evidence.

Where defendant moves for new trial for newly discovered evidence supported by affidavits, plaintiff may file counter affidavits prior to court's ruling on the motion, and it is the duty of the court to consider such counter

affidavits.

2. Appeal and error 761-Failure to state
proposition or points in a brief held waiver
of question as to amount of damages.
Defendant in a personal injury action
waived the question as to the amount of dam-
ages by failing to state any proposition or
point thereon in his brief.
3. Highways

184(4)-Instruction In personal injury case held not erroneous as not supported by evidence,

In an action for personal injuries sustained in a collision between plaintiff's buggy and defendant's truck, instruction permitting recovery, if defendant operated his truck at a great or high rate of speed, held not erroneous as not supported by evidence.

4. Appeal and error 758 (3)-Instruction will not be considered, where error therein not indicated in brief.

The Appellate Court will not consider an instruction challenged as erroneous, where appellant has failed to point out in his brief wherein it is erroneous. 5. Trial properly refused.

~~260(1) — Instructions

covered

It is not error to refuse requested instructions, the subject-matter of which has been substantially covered by other instructions.

judgment of $5,000 was rendered, after a remittitur of all in excess of said amount had been entered. Appellant filed a motion for a new trial, which was overruled, and this action of the court is made the basis of the only error assigned on appeal.

[1, 2] Appellant's first contention is based on the ground of newly discovered evidence, which is supported by the affidavits of himself and three persons upon whom he relies therefor. Appellee filed counter affidavits of herself and twelve other persons prior to the court's ruling on appellant's motion for a new trial. In filing such counter affidavits appellee was clearly within her rights, and it was the duty of the court to consider the same in determining whether a new trial should be granted on the ground of newly discovered evidence. First National Bank v. Gibbons (1893) 7 Ind. App. 629, 35 N. E. 31; Thornburg v. Buck (1895) 13 Ind. App. 446, 41 N. E. 85; Hammond, etc., R. Co. v. Spyzchalski (1896) 17 Ind. App. 7, 46 N. E. 47. The affidavit of appellant relates only to his diligence to discover evidence before the trial, and to facts which he is informed are within the knowledge of said three other persons, whose affidavits he filed with his motion for a new trial. The affidavits of said three other persons are confined to statements as to appellee's physical condition before and after the injury in question. In so far as they relate to her physical condition after the injury they are so fully met by the counter affidavits filed by appellee as to render them ineffective as a basis for a new trial on the ground under consideration. And, in so far as they relate to her physical condition, either before or after her injury, the facts stated, if true, would only tend to reduce the amount of appellee's damages-a question which appellant has waived by failing to state any proposition or point thereon in his brief. Indianapolis, etc., R. Co. v. Sample (1914) 58

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