road Company, in constructing a railroad from Logansport to South Bend, traversed Twin Lake crossing over the highway embankment above described on a trestle several feet higher than the embankment; the right to do so being secured by the construction of another embankment for the highway a short distance to the east. In making the new embankment, the railroad company put in a culvert about the center of the thoroughfare and equal in dimensions to both those in the old embankment. The trestle supporting the railroad track over the old way did not interfere with the flowage of the water through the culverts in the old embankment. In 1890 appellant, having acquired the rights of the Terre Haute & Logansport Railroad Company, without authority from appellee, filled up said trestle with dirt, and made a large and high embankment of earth from shore to shore of said crossing, filling and destroying both of said culverts, and completely separating and damming the waters of Meyers Lake, except so much thereof as will pass through a 30-inch iron pipe placed under the railroad which amounts to a very small part of the whole, and whereby appellee's water power is greatly diminished and rendered almost worthless.

This action was commenced in 1891 to recover damages for the loss of water power which appellee claims to own, and alleges appellant wrongfully destroyed by filling up said culvert. Appellee affirms the right to flow and overflow the lands upon which the highway embankment was located, and also the right to draw water through said culverts had been acquired by him and his grantors by open, adverse, notorious, continuous, and uninterrupted user for more than 20 years before the commission of the grievance complained of under claim of right against the owners of the land. A complaint in a single paragraph counting on a right by prescription was held good by the Appellate Court on appeal, and a judgment in favor of appellee reversed because not sustained by sufficient evidence. See Terre Haute & Indianapolis R. Co. v. Zehner, 15 Ind. App. 273, 42 N. E. 756. The case was again tried on the same complaint, slightly amended, which resulted in a verdict and judgment for appellee, which judgment was also reversed by the Appellate Court, on appeal, for insufficiency of evidence, and cause remanded for a new trial. See Terre Haute & Indianapolis R. Co. v. Zehner, 28 Ind. App. 229, 62 N. E. 508. The answers to the complaint were, first, a general denial, and, second, statutory authority to destroy the culvert. Upon the second return of the case to the Marshall circuit court appellee was permitted to, and did on April 19, 1902, file two additional paragraphs of complaint, numbered second and third. The second counts on a prescriptive right to draw water through a culvert in a natural water course and a prescriptive right to draw

water through a culvert built by him in a public highway, and seeks to recover damages for injury to his water power caused by appellant's destruction of said culverts in 1890. The third paragraph claims the right to the flow of water through a natural channel having well-defined banks and bed, and seeks to recover damage to his water power because appellant, in 1890, wrongfully filled up said channel, including the culverts therein, and stopped the flowage of the water to his mill. To each of these additional paragraphs of complaint a separate demurrer for insufficiency of facts was filed and overruled, and then there was filed an answer of general denial, and the six-year statute of limitations. Demurrers were overruled to the latter answers, and replies filed to the effect that the second and third additional paragraphs of complaint embodied and stated the same cause of action in different legal form that is stated in the first paragraph of complaint. Demurrers to the replies were overruled. There was a verdict and judgment for appellee.

The errors assigned by appellant are the overruling of his demurrer to each the second and third additional paragraphs of complaint, the overruling of his demurrer to plaintiff's affirmative reply to the second paragraph of appellant's answer to the second and third additional paragraphs of complaint, and the overruling of his motion for a new trial. Under the view we have taken of the case all the questions embraced within the assignment will be disposed of by our decision of two questions: First. Can a right by prescription be acquired by adverse user against the fee owner of land impressed with the easement of a suburban public highway, provided the right asserted does not conflict with the lawful rights and usage of the public? Second. Was the cause of action sued on in the second and third paragraphs of complaint, the same cause of action sued on in the plaintiff's original complaint, stated in a different legal form? If the first question be answerable in the affirmative, then the additional paragraphs of complaint were properly held good, and, if good, the sufficiency of the evidence to support the verdict is beyond controversy, and no error committed in refusing to give appellant's request No. 4. If the second be answerable in the affirmative, then the replies to the answers setting up the six-year statute of limitations were good, and the six-year limitation properly held to be inapplicable, then it follows that the court committed no error in giving instruction No. 2 relating to that subject, and to that effect, nor in overruling appellant's motion to tax to appellee all the costs made in the case prior to the filing of the said two additional paragraphs of complaint.

1. The law is that the public, in appropriating and possessing lands of an individual for use as a suburban highway, acquires no

greater right or interest in the lands actually occupied than an easement-that is, the right to use the surface of the land in perpetuity for all legitimate modes and purposes of travel, and the incidental right of properly putting the way in condition for unobstructed and convenient use-and that the fee in the underlying soil remains in the abutter, or person over whose land the highway is located. It is firmly settled that special proprietary rights in the soil remain in the owner of the fee distinct from those of the public, an invasion of which rights will entitle the servient owner to damages. The fee owner may in the exercise of these rights, and without interference with public use, throw up levees within the limits of the highway, higher than the highway embankment, to fight off flood waters. Shelbyville, etc., R. Co. v. Green, 99 Ind. 205. He may enjoin the owner of an easement to overflow his land from cutting ice formed on the submerged land. Brookville, etc., Co. v. Butler, 91 Ind. 134, 46 Am. Rep. 580. He may also lay pipes under ground within the highway, and may require another to answer to him in damages for doing the same thing. Kincaid v. Indianapolis, etc., Co., 124 Ind. 577, 24 N. E. 1066, 8 L. R. A. 602, 19 Am. St. Rep. 113. He may maintain an action for running a shaft across a highway under a bridge, and has the exclusive right to springs, mines, quarries, timber, and the like. Elliott's Roads & Streets, §§ 410, 411, and authorities. In short, the public has the right to pass and repass on the surface without hindrance or interference, and to work and keep the way in condition for easy and convenient travel, but in all other respects the soil, and all rights incidental thereto, belong absolutely to the owner of the fee, and may be exercised by him, provided in so doing he does not interfere with the rights of the public to travel the same. Kincaid's Case, supra, and cases cited. "Subject only to the public easement, the proprietor has all the usual rights and remedies of the owner of a freehold. He may sink a drain below the surface of the road, if proper care be taken to cover it so that it shall remain safe and convenient. He may carry water pipes, and mine under it." Elliott's Roads & Streets (2d Ed.) § 690, and authorities cited in note. The rule is well stated in Perley v. Chandler, 6 Mass. 454, 456, 4 Am. Dec. 159, as follows: "By the location of a way over the land of any person the public have acquired an easement, which the owner of the land cannot lawfully extinguish or unreasonably interrupt. But the soil and the freehold remain in the owner, although incumbered with a way. And every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim. He may maintain ejectment for the land thus incumbered; and, if the way be discontin

ued, he shall hold the land free from incumbrance. Upon these principles, there can be no doubt but that the owner of the land can sink a drain, or any water course, below the surface of his land covered with a way, so as not to deprive the public of their easement." We have seen that at the time of the commencement of this action the fee of the land at Twin Lake Crossing was in Elizabeth Witwer, and had been in her and her grantors for 40 years, and long before the raising of the dam and the raising and ponding back of the water over her land through Twin Lake thoroughfare into Meyers Lake, an obstruction of which privilege, not by Mrs. Witwer, the owner, but by appellant, forms the basis of this action.

It should be borne in mind that the right claimed and exercised by appellee, namely, the right, by means of a dam on his own land, to hold the water back over and through the thoroughfare into Meyers Lake, and draw it out as needed in the operation of his mill through a culvert maintained by himself under a highway, was not a highway right, nor a right that was inconsistent with the fullest and broadest use of the public, nor in any sense opposed to the public enjoyment of the road, but was clearly one of the proprietary rights of the owner of the fee. There can be no doubt but the owner of the Witwer land could have lawfully maintained culverts under the surface of the highway to enable the water to escape from Meyers Lake into Cook, or even to enable him to conduct the waters of Meyers Lake to his mill on the other side of the highway, provided in the doing he subjected the public to no inconvenience or expense. If, as proprietor, he had such right, he could convey it to another; and, if he could convey it, he could also loose it by adverse user. It will not be doubted that a prescriptive right, or easement, against the owner of the fee to set water back over the lands of another, by means of a dam, and to draw it out as needed by the mill owner, may be acquired by an uninterrupted and adverse possession of 20 years. After such claim and holding a grant is conclusively presumed. Postlethwaite v. Payne, 8 Ind. 104; Snowden v. Wilas, 19 Ind. 10, 81 Am. Dec. 370; Jones on Easements, 642; Gould on Waters, p. 611; Farnham's Water & Water Courses, p. 1796; Angell on Water Courses (7th Ed.) p. 543. We therefore hold that a right by prescription, to conduct water through a culvert under the surface of a highway, when so maintained as to impose no hindrance, inconvenience, or expense upon the public, may be acquired against the owner of the fee of the land underlying the highway by 20 years adverse and uninterrupted user.

But it is insisted by appellant's counsel that the Appellate Court has in the appeals to that court twice decided this question in the negative, and that it is therefore res adjudicata, so far as this particular case is

concerned. We are unable so to understand the rulings of the Appellate Court. The original complaint is set out in the opinion in the first appeal. 15 Ind. App. 273, 42 N. E. 756. It shows unmistakably, as is admitted by appellant's counsel, that the plaintiff based his action on the violation of a prescriptive right he had acquired to draw water through a culvert placed in a public highway, which culvert, as claimed, the appellant wrongfully destroyed. Referring to the complaint, the court says, at page 280 of 15 Ind. App., and page 758 of 42 N. E.: "After a full consideration we have concluded that the complaint is good on demurrer. The general allegations as to appellee's title by prescription are, perhaps, sufficiently broad to admit of proof of appellee's rights acquired in that manner." The last clause of the quotation clearly indicates that there was no doubt in the minds of the court that appellee, under sufficient allegations and proof, might establish a right by prescription of the character declared on. Appellee claimed an infringement of no other right. Destruction of the culvert under the highway and its consequences is the only grievance complained of, and we perceive no possible ground for upholding the complaint if the plaintiff had no legal right to conduct water through it. The court, having disposed of the demurrer to the complaint, announces (page 280 of 15 Ind. App., page 759 of 42 N. E.) that it will "proceed to determine what it regards as the vital question in the case." That question is the sufficiency of the evidence to prove the complaint. Having discussed the evidence adduced in support of the complaint, the opinion concludes (page 284 of 15 Ind. App., page 760 of 42 N. E.) as follows: "As we view the matter, the appellee has not shown any right of action by his evidence, and the court erred in overruling the motion for a new trial." In the second appeal it was said (page 230 of 28 Ind. App., page 508 of 62 N. E.): "This substituted amended complaint," upon which the second trial was had, "is an exact copy of the complaint set forth in the former opinion of the Appellate Court," except a few unimportant amendments. And on page 231 of 28 Ind. App., page 508 of 62 N. E.: "We think the court decided every question involved in the present appeal in Terre Haute etc., Co. v. Zehner, 15 Ind. App. 273, 42 N. E. 756. It was there said (page 231 of 28 Ind. App., page 508 of 62 N. E.): 'Before the appellee can recover damages of the appellant he must make it appear, (1) that he is entitled to use the water on the east side of the embankment; (2) that he has a right to draw the water through a culvert in the embankment; (3) that appellant has deprived appellee of the enjoyment of such right in whole or in part. * * The first and third propositions, which this court said upon the former appeal the appellee must estabiish, are established by the evidence. The second proposition held to be equally vital

*

to appellee's recovery has' not, under the allegations of appellee's complaint, been established. Under the complaint appellee's right to take water through a culvert constructed by him is based exclusively upon a prescriptive right. Referring to the culvert constructed by the appellee, the obstruction of which is the basis of appellee's claim for damages, his complaint says: 'And that plaintiff asserted and maintained said culvert at the depth to which it was originally constructed by him, as aforesaid, under claim of right, adversely, openly, notoriously, continuously, and uninterruptedly for more than 20 years prior to October, 1890, when it was filled up and obstructed by the defendant as herein set forth.' Without the above allegation the complaint would have been bad." The opinion then goes on to show that the evidence and answers to interrogatories conclusively showed that the culvert was not built until 1875, and in no event used by appellee more than 15 years prior to the destruction by appellant in 1890. For this failure of proof alone the cause was reversed for a new trial. As we view the appeals to the Appellate Court, the only things adjudicated by it were (1) the complaint, charging an invasion of a prescriptive right to draw water from one lake to another through a culvert placed under and through a highway, was good, and (2) that the proof offered on each of the trials was insufficient to sustain the complaint. The very most that can be reasonably claimed is that the court in the first opinion (page 283 of 15 Ind. App., page 759 of 42 N. E.) intimated at least that appellee could not assert a prescriptive right against the highway authorities, because the evidence did not show he had exercised the right to take water through the culvert under the highway adversely to the public. There is no doubt of this being a right declaration of the law, and its affirmance by the Appellate Court may be conceded; but, even then, we are far from an adjudication of the question under consideration. The question before us, and which has been an important question in the case from the beginning and never determined, is, has appellee shown and established a user against the owner of the fee at the locus in quo which has been adverse and uninterrupted for more than 20 years? This question we now decide in the affirmative. 2. Was the cause of action sued on in the second and third paragraphs of complaint, which were filed as additional paragraphs of amended complaint in 1902, the same cause of action sued on in appellee's original complaint filed in 1891? It is said in Chicago, etc., R. Co. v. Bills, 118 Ind. 221, 20 N. E. 775, by Mitchell, J.: "An amended complaint has relation, ordinarily, to the date of the commencement of the action, and is regardeȧ as a matter occurring in the continuation or progress of the original cause. Unless, there fore, some new claim or title, not previously

such sum as full consideration in payment for such yearly delay until one well should be completed; and that a failure to complete one well, or to make any payments within such time as mentioned, should render the lease null and void, and it was to remain without effect as between the parties; that immediately after the execution of the lease the lessee took possession thereof, and appellee pointed out to the agent of lessee, who acted for it, the portion of the land upon which he desired the well to be drilled, designating the place as near a certain oak tree, near which he desired the first well to be drilled; that the boundaries of the portion of the farm upon which wells might be drilled, and that portion upon which no wells were to be drilled, were at no time fixed and designated by the appellee, except as above stated, nor did the original lessee, nor appellants, nor either of them, at any time ask appellee, or any one representing him, to more definitely fix the boundaries of the portions of land so leased, nor the location of the well or wells to be drilled; that appellee was at all times ready and willing to more definitely locate the first well and fix the boundaries of the portions of said leased premises in accordance with the terms of the lease; that appellee did not notify the original lessee or appellants that he had or would designate the boundaries around the 20 acres where the buildings were, on which no wells should be drilled, or that he had or would more definitely locate the place where a well should be drilled; that subsequently Guffy & Co. assigned and transferred all their rights to and interest in said lease to the Indianapolis Natural Gas Company; that in April, 1890, the latter company, for a valuable consideration, assigned, transferred, and turned over to the appellant the Indianapolis Gas Company all the lands and property of every description belonging to the Indianapolis Natural Gas Company, including the lease in controversy; in making the transfer of such property and contracts the Indianapolis Natural Gas Company turned over to appellant the Indianapolis Gas Company a lease register purporting to show all contracts which were at that time held by the Indianapolis Gas Company which had not been canceled, and also the leases which had been canceled or abandoned; that the lease sued on did not appear on said lease register; that some old leases, marked "abandoned leases," were turned over to the Indianapolis Natural Gas Company in making such transfer, among which was the lease from appellee, which was "at the time a live and enforceable contract"; that said lease was not found by, nor did not come to, the knowledge of the Indianapolis Gas Company until after the transfer of leases and property aforesaid was fully consummated; that since the execution of said lease Guffy & Co. have not, nor have appellants,

or either of them, drilled or attempted to drill a gas well or wells upon any portion of the leased premises, or contracted any pipe lines or erected any buildings or machinery under said contract, or attempted to exercise any right or privilege granted thereunder; that neither the original lessee nor appellants have asserted any rights under said lease, nor have they taken possession of the premises therein described; that during the last week in January, 1892, the appellant the Indianapolis Gas Company, through its authorized agent, called upon appellee and urged him to consent to the cancellation of said lease and to sign a release receipt for the same; that at that time appellee demanded that he either be paid the rental due under the terms of the lease, or that a well or wells be drilled on his lands as provided in the lease; that appellee refused to cancel the lease or permit it to be done, and that the same has never been canceled or in any way released by appellee; that the lease sued on was executed on the 3d day of May, 1887, and was to run for five years; that the lessee therein was to begin operations on said lands within 30 days, and complete a well within three months, and upon failure to drill such well the original lessee was to pay appellee, within three months, $100 "for such yearly delay in the drilling of said well"; that no well was drilled on said real estate, and the first yearly payment became due and payable, under the terms of the lease, on the 3d day of October, 1888, and the third annual payment became due October 3, 1889, at which dates, respectively, a right of action accrued to appellee for the recovery of each yearly rental; that the complaint in this action was filed on the 2d day of June, 1900, and that the right of action for the recovery of each of said yearly rentals last above mentioned did not accrue within 10 years next preceding the day on which this action was commenced; that neither the appellee, nor any one for him, has received any compensation whatever under or by virtue of said lease, nor has the original lessee or appellants tendered to him any payment on account thereof; that said lease remained in full force and effect until the expiration of the full term of five years from the date thereof; that there is now due under said lease the sum of $100, with interest at the rate of 6 per cent. per annum on each and every payment that should have been made on and after the 3d day of April, 1890; that two annual payments of $100 each remain due and unpaid, making a total of $345.80 now due and payable under and by virtue of the terms of the lease. As a conclusion of law, the court stated “that the plaintiff is entitled to recover of the defendant the Indianapolis Gas Company the sum of $345.80 and his costs as against both of said defendants."