DeHart et al. v. Aper. terminated at the southeast corner of appellee's land; that appellee's land, except the east side, was low, and was a natural basin; that the reservoir on lot 121 was a continuance of the basin on appellee's land; that the surface of appellants' land was lower than appellee's land; that appellee had obstructed the flow of water from his land to lot 121, and to drain his own land had dug, permitted, or caused to be dug, a ditch to the southeast corner of his land, and thence on to the improved street in the town of Chauncey; that after the melting of the snow, and after and during the heavy rains of summer, the water flowed in torrents from the basin on appellee's land into said ditch, and on to and over appellants' land, and the water, because of an abrupt descent of forty feet on appellants' land, gathered force and momentum as it descended, and had carried away soil, gravel and sod, and had washed out trees, shrubbery, etc., to appellants' damage. The cause was twice tried. At the first trial the jury failed to agree upon a verdict. The second trial resulted in a verdiet and judgment for the appellee. Before the rendition of the judgment a motion for a new trial was interposed and overruled. One of the causes assigned for a new trial was newly discovered evidence, and the only contention here is upon the alleged sufficiency of the showing made by the appellants in support of that cause for a new trial. The appellee, testifying as a witness, denied having constructed, or having authorized the construction of, the ditch complained of. There was nevertheless evidence tending to prove that the ditch was made by persons who had but a short time before been seen working in the appellee's field near by, and who were seemingly engaged as workmen upon the appellee's lands described in the complaint. Other circumstances were adduced, and relied upon, as tending to show that the ditch was dug by the appellee's employees, with his knowledge and at least implied consent. Both of the appellants filed affidavits alleging that upon another trial they could prove additional and material facts ! DeHart et al. v. Aper. by one Evans, a newly discovered witness. They also, at the same time, filed the affidavit of Evans, in which he stated, amongst other things, that he worked as a farm hand for the appellee during the years 1875 and 1876; "that, during the spring and summer of said year 1875, said defendant by himself, and this affiant for him, constructed" the ditch in question. The appellee then procured an additional affidavit from Evans, and filed it as a counter-affidavit to the one he had previously made. In this latter affidavit Evans withdrew some of his previous statements and modified others. Among others, he withdrew his former statement that the appellee had constructed the ditch in controversy. He also intimated that his first affidavit had been obtained from him by undue means, and claimed that he had been induced to sign it in ignorance of many of its statements. William M. DeHart, one of the plaintiffs, and the husband of Caroline V. DeHart, his co-plaintiff, filed his additional affidavit, testifying to admissions which Evans had since made in material conflict with many of the allegations of his second affidavit, and stating that, notwithstanding such admissions, Evans had declined to sign any other or further affidavit in the premises. Upon the facts thus stated, the appellants moved that Evans be summoned to appear in court and to testify orally concerning the matters embraced in both of his affidavits. Their motion was granted, and, over the objection of the appellee, Evans was examined and testified orally concerning the matters in question. He modified and corrected some of his previous statements on both sides, and explained more at length. He admitted that he had assisted in the construction of the ditch referred to in both of his affidavits, but said that he rendered that assistance only at the request of two of his co-employees on the appellants' farm; that one of these two co-employees was a son of the appellee, who seemed to be a managing man in the absence of his father; that the ditch, as it was originally constructed, was a rather small affair, and DeHart et al. v. Aper. that he, Evans, did not know that the appellee had any knowledge of its construction when it was made. There were other questions involved at the trial besides the inquiry as to the authority under which the ditch referred to was made. If, therefore, the question for decision in this case rested upon the statements of Evans contained in his first affidavit alone, we would scarcely feel justified in holding that the testimony of Evans would probably produce a different result upon another trial. 3 Graham and Waterman New Trials, 1093, et seq. But, accepting Evans' oral testimony as his last and true statement of what he would swear to upon a new trial, we feel constrained to hold that the proposed evidence would be only cumulative to that which was given at the former trial. It would afford only circumstantial evidence, tending to establish the appellee's responsibility for the construction of the ditch, and, as has been seen, there was circumstantial evidence of a similar character at the trial, tending to establish the appellee's responsibility in that respect. It would, therefore, only be additional "evidence of the same kind to the same point." Houston v. Bruner, 39 Ind. 376; Shirel v. Baxter, 71 Ind. 352; Lefever v. Johnson, 79 Ind. 554; Buskirk Pr. 242; Hines v. Driver, 100 Ind. 315. But, waiving all question as to the cumulative character of the proposed newly discovered evidence as it was foreshadowed by the oral testimony of Evans, the case presents a view which is fatal to this appeal. The evidence submitted as above by the parties respectively was conflicting, and hence its weight as evidence became a question for the decision of the court to which it was addressed. Decisions thus made upon the mere weight of conflicting evidence will not be reviewed by this court. Harris v. Rupel, 14 Ind. 209; Long v. State, 95 Ind. 481; Epps v. State, 102 Ind. 539; Shular v. State, 105 Ind. 289. The judgment is affirmed, with costs. Filed Sept. 23, 1886. 107 464 125 21 107 464 The Lake Erie and Western Railway Company v. Griffin et al. No. 12,503. THE LAKE ERIE AND WESTERN RAILWAY COMPANY RAILROAD.-Judicial Sale of Property and Franchises.-Liability of New Cor- SUPREME COURT.-Findings in Suits in Equity Considered as in Other Cases.— PRACTICE.-Admission of Evidence.-Harmless Error.-The erroneous admission of immaterial and harmless evidence will not authorize the reversal of the judgment. From the Carroll Circuit Court. H. W. Chase, F. S. Chase and F. W. Chase, for appellant. G. O. Behm, A. O. Behm, J. R. Coffroth and S. A. Huff, for appellees. HOWK, C. J.-This case is now here for the second time. The opinion and decision of this court, on the former appeal, is reported under the title of Lake Erie, etc., R. W. Co. v. The Lake Erie and Western Railway Company v. Griffin et al. Griffin, 92 Ind. 487. On the former appeal we held that the second paragraph of appellees' complaint stated an equitable cause of action against the appellant, and we reversed the judgment theretofore rendered herein, because the court had erred, in our opinion, in submitting the cause to a jury for trial. In our former opinion, we gave a full summary of the facts stated in the second paragraph of appellees' complaint, to which we refer without repeating it here, as we do not find that any change was made in any of the pleadings after the cause was remanded. The cause was tried by the court, and the court made a special finding of the facts, and thereon stated its conclusions of law. Over the exceptions of both parties to its conclusions of law, and over appellants' motions for a venire de novo, and for a new trial, the court rendered a decree in favor of appellees and against the appellants, in accordance with such conclusions of law. The first error complained of here, on behalf of the appellant, is the overruling of its exceptions to the court's conclusions of law upon its special finding of facts. The facts found by the court were, in substance, as follows: The Lake Erie and Western Railway Company and the Lafayette, Muncie and Bloomington Railroad Company, defendants hereto, are respectively railroad corporations of the State of Indiana, organized under and pursuant to the laws of such State. The plaintiffs herein were, on the 24th day of October, 1875, and for many years prior thereto, the owners in fee simple of thirty-seven feet off of the west end of lot No. 1, in O. L. Clark's addition to the city of Lafayette, which west end of such lot abuts on an alley twelve feet wide. At and prior to the time aforesaid, the Lafayette, Muncie and Bloomington Railroad Company owned and operated a line of railroad along and contiguous to the above described real estate, and, on the day last named, appropriated such real estate for the use of its track, and necessary side-tracks, water stations and depot; and, on said day, it filed its act of approVOL. 107.-30 |
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