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road Company, in constructing a railroad , water through a culvert built by him in a from Logansport to South Bend, traversed public highway, and seeks to recover damTwin Lake crossing over the highway em- | ages for injury to his water power caused bankment above described on a trestle sever- | by appellant's destruction of said culverts in al feet higher than the embankment; the 1890. The third paragraph claims the right right to do so being secured by the construc to the flow of water through a natural chantion of another embankment for the highway nel having well-defined banks and bed, and a short distance to the east. In making the seeks to recover damage to his water power new embankment, the railroad company put because appellant, in 1890, wrongfully filled in a culvert about the center of the thorough up said channel, including the culverts there. fare and equal in dimensions to both those in, and stopped the flowage of the water to in the old embankment. The trestle sup his mill. To each of these additional paraporting the railroad track over the old way graphs of complaint a separate demurrer for did not interfere with the flowage of the insufficiency of facts was filed and overruled, water through the culverts in the old em and then there was filed an answer of generbankment. In 1890 appellant, having acquir al denial, and the six-year statute of limitaed the rights of the Terre Haute & Logans tions. Demurrers were overruled to the latport Railroad Company, without authority ter answers, and replies filed to the effect from appellee, filled up said trestle with dirt, that the second and third additional paraand made a large and high embankment of graphs of complaint embodied and stated the earth from shore to shore of said crossing, same cause of action in different legal form filling and destroying both of said culverts, that is stated in the first paragraph of comand completely separating and damming the plaint. Demurrers to the replies were overwaters of Meyers Lake, except so much there | ruled. There was a verdict and judgment of as will pass through a 30-inch iron pipe for appellee. placed under the railroad which amounts to The errors assigned by appellant are the a very small part of the whole, and whereby overruling of his demurrer to each the second appellee's water power is greatly diminished and third additional paragraphs of comand rendered almost worthless.

plaint, the overruling of his demurrer to This action was commenced in 1891 to re-l plaintiff's affirmative reply to the second cover damages for the loss of water power paragraph of appellant's answer to the secwhich appellee claims to own, and alleges ond and third additional paragraphs of comappellant wrongfully destroyed by filling up plaint, and the overruling of his motion for said culvert. Appellee affirms the right to a new trial. Under the view we have taken flow and overflow the lands upon which the of the case all the questions embraced within highway embankment was located, and also the assignment will be disposed of by our the right to draw water through said cul decision of two questions: First. Can a verts had been acquired by him and his right by prescription be acquired by adverse grantors by open, adverse, notorious, contin user against the fee owner of land impressed uous, and uninterrupted user for more than with the easement of a suburban public high20 years before the commission of the griev way, provided the right asserted does not ance complained of under claim of right conflict with the lawful rights and usage of against the owners of the land. A complaint the public? Second. Was the cause of action in a single paragraph counting on a right by sued on in the second and third paragraphs of prescription was held good by the Appellate complaint, the same cause of action sued on Court on appeal, and a judgment in favor of in the plaintiff's original complaint, stated in appellee reversed because not sustained by a different legal form? If the first question sufficient evidence. See Terre Haute & In be answerable in the affirmative, then the dianapolis R. Co. v. Zehner, 15 Ind. App. 273, additional paragraphs of complaint were 42 N. E. 756. The case was again tried on properly held good, and, if good, the suffithe same complaint, slightly amended, which | ciency of the evidence to support the verdict resulted in a verdict and judgment for appel- is beyond controversy, and no error comlee, which judgment was also reversed by the mitted in refusing to give appellant's request Appellate Court, on appeal, for insufficiency No. 4. If the second be answerable in the of evidence, and cause remanded for a new affirmative, then the replies to the answers trial. See Terre Haute & Indianapolis R. setting up the six-year statute of limitations Co. v. Zehner, 28 Ind. App. 229, 62 N. E. 508. were good, and the six-year limitation propThe answers to the complaint were, first, a erly held to be inapplicable, then it follows general denial, and, second, statutory author that the court committed no error in giving ity to destroy the culvert. Upon the second instruction No. 2 relating to that subject, and return of the case to the Marshall circuit to that effect, nor in overruling appellant's court appellee was permitted to, and did on motion to tax to appellee all the costs made April 19, 1902, file two additional paragraphs in the case prior to the filing of the said two of complaint, numbered second and third. additional paragraphs of complaint. The second counts on a prescriptive right to 1 1. The law is that the public, in appropriatdraw water through a culvert in a natural ing and possessing lands of an individual water course and a prescriptive right to draw for use as a suburban highway, acquires no greater right or interest in the lands actual- , ued, he shall hold the land free from incumly occupied than an easement-that is, the brance. Upon these principles, there can be right to use the surface of the land in per no doubt but that the owner of the land can petuity for all legitimate modes and purposes sink a drain, or any water course, below of travel, and the incidental right of proper the surface of his land covered with a way, ly putting the way in condition for unob so as not to deprive the public of their easestructed and convenient use—and that the ment.” We have seen that at the time of fee in the underlying soil remains in the the commencement of this action the fee abutter, or person over whose land the of the land at Twin Lake Crossing was in highway is located. It is firmly settled that Elizabeth Witwer, and had been in her and special proprietary rights in the soil remain her grantors for 40 years, and long before in the owner of the fee distinct from those the raising of the dam and the raising and of the public, an invasion of which rights ponding back of the water over her land will entitle the servient owner to damages. through Twin Lake thoroughfare into Meyers The fee owner may in the exercise of these Lake, an obstruction of which privilege, not rights, and without interference with public by Mrs. Witwer, the owner, but by appellant, use, throw up levees within the limits of forms the basis of this action. the highway, higher than the highway em It should be borne in mind that the right bankment, to fight off flood waters. Shelby claimed and exercised by appellee, namely, ville, etc., R. Co. v. Green, 99 Ind. 205. He the right, by means of a dam on his own may enjoin the owner of an easement to over- land, to hold the water back over and through flow his land from cutting ice formed on the the thoroughfare into Meyers Lake, and draw submerged land. Brookville, etc., Co. v. But it out as needed in the operation of his mill ler, 91 Ind. 134, 46 Am. Rep. 580. He may through a culvert maintained by himself unalso lay pipes under ground within the high der a highway, was not a highway right, way, and may require another to answer to nor a right that was inconsistent with the him in damages for doing the same thing. fullest and broadest use of the public, nor Kincaid v. Indianapolis, etc., Co., 124 Ind. in any sense opposed to the public enjoy577, 24 N. E. 1066, 8 L. R. A. 602, 19 Am. ment of the road, but was clearly one of the St. Rep. 113. He may maintain an action proprietary rights of the owner of the fee. for running a shaft across a highway under There can be no doubt but the owner of the a bridge, and bas the exclusive right to Witwer land could have lawfully maintained springs, mines, quarries, timber, and the like. culverts under the surface of the highway Elliott's Roads & Streets, 88 410, 411, and to enable the water to escape from Meyers authorities. In short, the public has the right Lake into Cook, or even to enable him to to pass and repass on the surface without conduct the waters of Meyers Lake to his hindrance or interference, and to work and mill on the other side of the highway, prokeep the way in condition for easy and con vided in the doing he subjected the public venient travel, but in all other respects the to no inconvenience or expense. If, as prosoil, and all rights incidental thereto, be | prietor, he had such right, he could convey long absolutely to the owner of the fee, and it to another; and, if he could convey it, he may be exercised by him, provided in so do could also loose it by adverse user. It will ing he does not interfere with the rights not be doubted that a prescriptive right, or of the public to travel the same. Kincaid's easement, against the owner of the fee to Case, supra, and cases cited. “Subject only set water back over the lands of another, to the public easement, the proprietor has | by means of a dam, and to draw it out as all the usual rights and remedies of the needed by the mill owner, may be acquired owner of a freehold. He may sink a drain by an uninterrupted and adverse possession below the surface of the road, if proper care of 20 years. After such claim and holding be taken to cover it so that it shall remain a grant is conclusively presumed. Postle. safe and convenient. He may carry water thwaite v. Payne, 8 Ind. 104; Snowden v. pipes, and mine under it.” Elliott's Roads Wilas, 19 Ind. 10, 81 Am. Dec. 370; Jones & Streets (2d Ed.) 8 690, and authorities on Easements, 642; Gould on Waters, p. cited in note. The rule is well stated in | 611; Farnham's Water & Water Courses, p. Perley v. Chandler, 6 Mass. 454, 456, 4 Am. 1796; Angell on Water Courses (7th Ed.) p. Dec. 159, as follows: "By the location of 543. We therefore hold that a right by prea way over the land of any person the pub scription, to conduct water through a culvert lic have acquired an easement, which the under the surface of a highway, when so owner of the land cannot lawfully extinguish maintained as to impose no hindrance, in. or unreasonably. interrupt. But the soil and convenience, or expense upon the public, may the freehold remain in the owner, although be acquired against the owner of the fee of incumbered with a way. And every use to the land underlying the highway by 20 years which the land may be applied, and all the adverse and uninterrupted user. profits which may be derived from it, con. But it is insisted by appellant's counsel sistently with the continuance of the ease that the Appellate Court has in the appeals ment, the owner can lawfully claim. He to that court twice decided this question in may maintain ejectment for the land thus the negative, and that it is therefore res adincumbered; and, if the way be discontin. | judicata, so far as this particular case is concerned. We are unable so to understand , to appellee's recovery has not, under the althe rulings of the Appellate Court. The legations of appellee's complaint, been esoriginal complaint is set out in the opinion in tablished. * * * Under the complaint apthe first appeal. 15 Ind. App. 273, 42 N. E. pellee's right to take water through a cul756. It shows unmistakably, as is admitted vert constructed by him is based exclusively by appellant's counsel, that the plaintiff based upon a prescriptive right. Referring to the his action on the violation of a prescriptive culvert constructed by the appellee, the obright he had acquired to draw water through struction of which is the basis of appellee's a culvert placed in a public highway, which claim for damages, his complaint says: 'And culvert, as claimed, the appellant wrongfully that plaintiff asserted and maintained said destroyed. Referring to the complaint, the culvert at the depth to which it was origicourt says, at page 280 of 15 Ind. App., and nally constructed by him, as aforesaid, under page 758 of 42 N. E.: “After a full consider claim of right, adversely, openly, notoriously, ation we have concluded that the complaint continuously, and uninterruptedly for more is good on demurrer. The general allegations than 20 years prior to October, 1890, when as to appellee's title by prescription are, it was filled up and obstructed by the deperhaps, sufficiently broad to admit of proof fendant as herein set forth. Without the of appellee's rights acquired in that manner." above allegation the complaint would have The last clause of the quotation clearly in been bad." The opinion then goes on to dicates that there was no doubt in the minds show that the evidence and answers to inof the court that appellee, under suficient terrogatories conclusively showed that the allegations and proof, might establish a right culvert was not built until 1875, and in no by prescription of the character declared on. event used by appellee more than 15 years Appellee claimed an infringement of no other prior to the destruction by appellant in 1890. right. Destruction of the culvert under the For this failure of proof alone the cause was highway and its consequences is the only reversed for a new trial. As we view the grievance complained of, and we perceive no appeals to the Appellate Court, the only possible ground for upholding the complaint things adjudicated by it were (1) the comif the plaintiff bad no legal right to conduct plaint, charging an invasion of a prescripwater through it. The court, having disposed tive right to draw water from one lake to of the demurrer to the complaint, announces another through a culvert placed under and (page 280 of 15 Ind. App., page 759 of 42 through a highway, was good, and (2) that N. E.) that it will “proceed to determine what the proof offered on each of the trials was it regards as the vital question in the case.” insufficient to sustain the complaint. The That question is the sufficiency of the evi very most that can be reasonably claimed dence to prove the complaint. Having dis is that the court in the first opinion (page cussed the evidence adduced in support of the 283 of 15 Ind. App., page 759 of 42 N. E.) complaint, the opinion concludes (page 284 | intimated at least that appellee could not of 15 Ind. App., page 760 of 42 N. E.) as assert a prescriptive right against the bigbfollows: "As we view the matter, the ap way authorities, because the evidence did not pellee has not shown any right of action by show he had exercised the right to take his evidence, and the court erred in overrul water through the culvert under the highing the motion for a new trial.” In the way adversely to the public. There is no second appeal it was said (page 230 of 28 doubt of this being a right declaration of the Ind. App., page 508 of 62 N. E.): "This sub- law, and its affirmance by the Appellate stituted amended complaint," upon which the Court may be conceded; but, even then, we second trial was had, “is an exact copy of are far from an adjudication of the question the complaint set forth in the former opin under consideration. The question before us, ion of the Appellate Court," except a few and which has been an important question in unimportant amendments. And on page 231 the case from the beginning and never deterof 28 Ind. App., page 508 of 62 X. E.: "We mined, is, has appellee shown and established think the court decided every question in a user against the owner of the fee at the volved in the present appeal in Terre Haute locus in quo which has been adverse and unetc., Co. v. Zehner, 15 Ind. App. 273, 42 V. E. interrupted for more than 20 years? This 756. It was there said (page 231 of 28 Ind. question we now decide in the affirmative. App., page 508 of 62 N. E.): 'Before the ap 2. Was the cause of action sued on in the pellee can recover damages of the appellant second and third paragraphs of complaint, he must make it appear, (1) that he is en which were filed as additional paragraphs of titled to use the water on the east side of amended complaint in 1902, the same cause the embankment; (2) that he has a right to of action sued on in appellee's original comdraw the water through a culvert in the plaint filed in 1891? It is said in Chicago, embankment; (3) that appellant has deprived etc., R. Co. v. Bills, 118 Ind. 221, 20 N. E. appellee of the enjoyment of such right in 775, by Mitchell, J.: "An amended complaint whole or in part. * * The first and has relation, ordinarily, to the date of the third propositions, which this court said upon commencement of the action, and is regarde, the former appeal the appellee must estab- | as a matter occurring in the continuation or jish, are established by the evidence. The progress of the original cause. Uuless, there second proposition held to be equally vital fore, some new claim or title, not previously asserted, is set up by way of amendment, I well and mark the boundaries of the reserved a plea of the statute of limitation will be portion of the premises, but was never redetermined with reference to the date when :

quested to do so by the lessee, the lessee, on fail

ing to dig the well within the required time, was the action was originally commenced"-citing liable for the prescribed rental, although the Indiana cases. See, also, Ohio, etc., R. Co. v. lessor never actually marked the boundaries of Stein, 140 Ind. 61, 39 N. E. 246; Peerless the reserved tract.

| 3. SAME-ASSIGNMENT OF LEASES. Stone Co. v. Wray, 152 Ind. 27, 51 N. E. 326;

..Where a gas lease, which by its terms had Cleveland, etc., R. Co. v. Bergschicker, 162

two more years to run, was assigned by the Ind. 108, 69 N. E. 1000. As we have here lessee by a general assignment covering "all live tofore seen, the additional paragraphs of

leases" belonging to the assignor, the assignee

was liable on all the obligations of the lessee, complaint, filed 11 years after the first, are

although the lease in question was not shown on in all material respects the same as the a lease register of the lessor which purported first. They contain all that is contained in to show all its live leases, but was included in the first, and in addition thereto a few un.

a package of leases marked "abandoned leases,"

and did not come to the knowledge of the asimportant averments, such as the name of the

signee until after the transfer was consummated. owner of the fee of Twin Lake Crossing,

Appeal from Circuit Court, Hancock Counbeing the place in controversy, the true date when appellee built the culvert in the high

ty; Edward W. Felt, Judge. way (1868), the value of the flooded lands

Action by William G. Pierce against the

Indianapolis Gas Company and others. From of others, before and after being submerged,

a judgment for plaintiff, defendants appeal. and perhaps in a few other particulars, to meet the criticisms and suggestions of the

Affirmed. Appellate Court. The paragraphs of com

Kane & Kane, for appellants. L. S. Bald. plaint are all founded on the same wrong win, for appellee. the destruction of the culverts. Plead the same substantial facts in different form, and

WILEY, J. Appellee recovered a judgthere cannot be the slightest doubt but a

ment against appellant the Indianapolis Gas recovery on either paragraph would be a

Company for rental upon a gas lease. At bar to a recovery on either of the others.

the request of the parties the court made a This should be taken as a fair test. Baylies,

special finding of facts, and stated its conCode Pl. & For. p. 323, quoted with approval

clusion of law thereon. To the conclusion in Blake v, Minkner, 136 Ind. 426, 36 . E.

of law a proper exception was reserved. The 246. It follows that the additional para

appellant the Indianapolis Gas Company graphs of complaint must be regarded as filed

moved for a new trial, and its motion was at the date of the commencement of the ac

overruled. Under the assignment of errors tion in 1891, within one year after the filling

we are required to review the conclusion of up of the culverts, in determining the effect

law and the questions presented by the mo of a limitation statute; and this results in

tion for a new trial. The court rendered our holding that the court did not err in

judgment against both of the appellants overruling the demurrer to appellee's reply to

for costs. the six-year statute of limitation, nor in

The facts exhibited by the special findings giving to the jury instruction No. 2, nor in

are as follows: That on May 3, 1887, appeloverruling appellant's motion to retax costs.

lee entered into a contract and lease in writThe verdict is sustained by sufficient evi

ing, by which he demised and let to one Gufdence, and is not contrary to law. The mat

fy & Co., for the purpose of drilling and ters in respect to which the evidence failed

operating for oil or natural gas, etc., a cerin the two former appeals have been abun

tain tract of land in Hamilton county, Ind. dantly supplied in this. We find no error.

containing 40 acres, more or less, reserving Judgment affirmed.

therefrom 20 acres around the building on

the premises, upon which it was provided no (36 Ind. App. 573)

well should be drilled, and the boundaries of INDIANAPOLIS GAS CO. et al. v. PIERCE. which 20 acres should be designated by ap• (No. 5,517.)

pellee; that under such contract it was pro(Appellate Court of Indiana, Division No. 2.

vided that the rights granted to the lessee Nov. 28, 1905.)

should continue for a term of five years, and 1. MINES AND MINERALS-GAS LEASES-PRO

that, if gas was "contained in sufficient quanVISIONS FOR RENTAL-VALIDITY.

tities" and utilized, the consideration to be A condition in a gas lease, providing for an

paid appellee should be $100 per annum for annual rental upon the failure of the lessee to drill a well within a designated period, is valid

each well, the same payable within 60 days and enforceable.

after the completion of the well, and there2. SAME-CONSTRUCTION OF LEASES-OBLIGA after annually in advance; that the well TION TO PAY RENTAL.

should be commenced and completed within Where a gas lease reserved from its operation a tract, the boundaries of which were to

six months, and, in case of a failure to so be designated by the lessor, and provided for the complete such wel within the designated payment of an annual rental by the lessee on its time, the lessee was to pay appellee for such failure to drill a well within a designated

delay the sum of $100 per annum within period, and the lessor designated a place where a well might be drilled, and was at all times

three months after the time for completing ready and willing to more definitely locate the said well, and the appellee agreed to accept such sum as full consideration in payment, or either of them, drilled or attempted to for such yearly delay until one well should drill a gas well or wells upon any portion be completed; and that a failure to com of the leased premises, or contracted any plete one well, or to make any payments pipe lines or erected any buildings or mawithin such time as mentioned, should ren chinery under said contract, or attempted der the lease null and void, and it was to to exercise any right or privilege granted remain without effect as between the par thereunder; that neither the original lessee ties; that immediately after the execution nor appellants have asserted any rights under of the lease the lessee took possession there said lease, nor have they taken possession of, and appellee pointed out to the agent of the premises therein described; that durof lessee, who acted for it, the portion of ing the last week in January, 1892, the apthe land upon which he desired the well to be pellant the Indianapolis Gas Company, drilled, designating the place as near a cer through its authorized agent, called upon aptain oak tree, near which he desired the first

pellee and urged him to consent to the cancelwell to be drilled; that the boundaries of

lation of said lease and to sign a release the portion of the farm upon which wells

receipt for the same; that at that time apmight be drilled, and that portion upon which

pellee demanded that he either be paid the no wells were to be drilled, were at no time

rental due under the terms of the lease, or fixed and designated by the appellee, except

that a well or wells be drilled on his lands as as above stated, nor did the original lessee,

provided in the lease; that appellee refused nor appellants, nor either of them, at any

to cancel the lease or permit it to be dore, time ask appellee, or any one representing

and that the same has never been canceled or him, to more definitely fix the boundaries

in any way released by appellee; that the of the portions of land so leased, nor the

lease sued on was executed on the 3d day location of the well or wells to be drilled;

of May, 1887, and was to run for five years; that appellee was at all times ready and will

that the lessee therein was to begin operaing to more definitely locate the first well

tions on said lands within 30 days, and comand fix the boundaries of the portions of said

plete a well within three months, and upon leased premises in accordance with the terms

failure to drill such well the original lessee of the lease; that appellee did not notify the

was to pay appellee, within three months, original lessee or appellants that he had or would designate the boundaries around the

$100 "for such yearly delay in the drilling of 20 acres where the buildings were, on which

said well”; that no well was drilled on said no wells should be drilled, or that he had or

real estate, and the first yearly payment bewould more definitely locate the place where

came due and payable, under the terms of a well should be drilled; that subsequently

the lease, on the 3d day of October, 1888, and Guffy & Co. assigned and transferred all their

the third annual payment became due Octorights to and interest in said lease to the

ber 3, 1889, at which dates, respectively, a Indianapolis Natural Gas Company; that

right of action accrued to appellee for the rein April, 1890, the latter company, for a

covery of each yearly rental; that the comvaluable consideration, assigned, transferred,

plaint in this action was filed on the 2d day and turned over to the appellant the Indian

of June, 1900, and that the right of action apolis Gas Company all the lands and prop

for the recovery of each of said yearly renerty of every description belonging to the

tals last above mentioned did not accrue Indianapolis Natural Gas Company, includ

within 10 years next preceding the day on ing the lease in controversy; in making the

which this action was commenced; that transfer of such property and contracts the

neither the appellee, nor any one for bim, Indianapolis Natural Gas Company turned

has received any compensation whatever unover to appellant the Indianapolis Gas Com

der or by virtue of said lease, nor has the pany a lease register purporting to show

original lessee or appellants tendered to him all contracts which were at that time held

any payment on account thereof; that said by the Indianapolis Gas Company which had

lease remained in full force and effect until not been canceled, and also the leases which the expiration of the full term of five years had been canceled or abandoned; that the from the date thereof; that there is now due lease sued on did not appear on said lease under said lease the sum of $100, with interregister; that some old leases, marked "aban est at the rate of 6 per cent. per annum on doned leases,” were turned over to the In each and every payment that should have dianapolis Natural Gas Company in mak been made on and after the 3d day of April, ing such transfer, among which was the 1890; that two annual payments of $100 each lease from appellee, which was “at the time remain due and unpaid, making a total of a live and enforceable contract"; that said $345.80 now due and payable under and by lease was not found by, nor did not come virtue of the terms of the lease. As a conto, the knowledge of the Indianapolis Gas clusion of law, the court stated “that the Company until after the transfer of leases plaintiff is entitled to recover of the defendand property aforesaid was fully consummat- | ant the Indianapolis Gas Company the sum ed; that since the execution of said lease of $345.80 and his costs as against both of Guffy & Co. have not, nor have appellants, said defendants."

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