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3. WATERS AND WATER COURSES 38 The second paragraph of complaint in sub


of a certain tract of real estate in Sullivan Where part of a natural water course was county, Ind., which is under a state of cul. improved by the landowners by confining it in tivation. That appellantă own a tract of real an artificial channel, it did not thereby lose its estate, which Joins appellee's real estate on characteristics as a "natural water course." [Ed. Note. For other cases, see Waters and is to the south, and from time immemorial

the south. That the slope of appellee's land Water Courses, Cent. Dig. $ 30; Dec. Dig. 38.

the surface water from appellee's lands has For other definitions, see Words and Phrases, been collected into an artificial channel runFirst and Second Series, Natural Water ning through appellee's land, the water of Course.)

which has been discharged onto the land 4. WATERS WATER COURSES Ow38. of appellants through a well-defined channel, CHARACTER AS "NATURAL WATER COURSE." Where there was a marked depression, or

which continues across a part of appellants' surface indication of a channel, and throughout land. The channel is some 3 feet deep, vary. its entire course there was a flowing current of ing in width; at places it is 3 feet wide in the water to the southwest, and the stream was pos- bottom and 6 feet wide at the top, and consessed of permanency in that it flowed from stitutes appellee's only outlet, and through time immemorial six to nine months in each which the water from his farm has been disyear, such channel a “natural water course,” though before part of the stream was charged for more than 30 years, with the improved by confining it to an artificial chan- full knowledge, consent, and acquiescence of nel there was earth's surface in the form of a channel of a appellants and their grantors, immediate and stream extending throughout the entire course remote, and under a claim of right on the of the trough or swale.

part of appellee, which claim has been open, [Ed. Note.-For other cases, see Waters and notorious, and exclusive, by reason of which Water Courses, Cent. Dig. $ 30; Dec. Dig. Om appellee has acquired an easement to continue 38.)

the discharging of the water collected into the 5. APPEAL AND ERROR 1010(1)-REVIEW


wrongfully and unlawfully constructed a conWhere there is some evidence supporting crete dam across the channel where it en. every material point involved under an issue ters the land of appellants, with wings excan be no reversal on the ground that the evie tending on either side, some 20 feet in length dence does not sustain the decision of the trial and about 2 feet high, which obstructs the court.

flow of the water, destroying the use of some [Ed. Note. For other cases, see Appeal and 2 or 3 acres of appellee's land lying close Error, Cent. Dig. 88 3979–3981; Dec. Dig. Omo to the channel, and that about 5 acres of 1010(1).]

appellee's corn has been destroyed from Appeal from Circuit Court, Clay County; backwaters caused by the dam to his damage John M. Rawley, Judge.

in the sum of $250. That if the dam was Suit by Tarleton C. Woodward against permitted to remain, it would be to appelRobert E. Trout and others. From a decree lee's irreparable injury, and that appellants and judgment for plaintiff, defendants ap- should be ordered to remove it and be forpeal. Affirmed.

ever enjoined from maintaining the same. Clarence A. Royse, George 0. Dix, and The first paragraph of complaint, the sufiJames A. Cooper, Jr., all of Terre Haute, for ciency of which is not here questioned, chargappellants. William R. Nesbit, of Sullivan, es appellants with obstructing a patural and Arthur Denny Cutler, of Carlisle, for water course. appellee.

[1] Where an easement is used by one

whenever he sees proper, without asking per. MORAN, P. J. Appellee, in the court be mission, and no objection is made thereto, low, obtained a mandatory injunction against the use is adverse; and an adverse enjoyment appellants, directing them to remove a cer- and use uninterrupted for 20 years of an tain concrete dam and from maintaining the easement cannot be afterwards disputed. same on their real estate, which adjoined Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230; appellee's, which appellee alleged interfered Pyott v. State, 170 Ind. 118, 83 N. E. 737; with the flow of a water course which fur- Walley v. Wiley, 56 Ind. App. 171, 104 N. E. nished drainage for his real estate. In ad- 318; Seigmund v. Tyner, 52 Ind. App. 581, dition to relief by mandatory injunction, ap- 101 N. E. 20. pellee was awarded judgment in damages In the latter case, it was said in considerin the sum of $10. A reversal of the decree ing the sufficiency of an answer that pleaded and judgment is sought on the ground that a right by prescription: the court erred in overruling appellant's "Its averments show that said drains were demurrer to appellee's second paragraph of constructed and in use by and with the consent complaint, in stating its conclusions of law of all owners of said lands long before appel

lant purchased his real estate; that he purchasupon the facts specially found, and in over- ed with full knowledge of the same and of apruling appellants' motion for a new trial. I pellee's easement, or right to flow water across

his said lands. Under the authorities the an- | to the construction of the artificial channel swer states a good defense to appellant's com- on the tracts of real estate mentioned there plaint."

was evidence of a flow of water across the In Mitchell v. Bain, supra, the following lands throughout the entire course where the language is made use of:

channel is now located; that the artificial "Such enjoyment without explanation how it channel was constructed for the purpose of began is presumed to have been in pursuance of a grant. The owner of the land has the bur- confining the water within narrower bounds den of proving that the use of the easement than that which it originally occupied ; that was under some license, indulgence, or special appellants' tenant from 1903 to 1907 was contract, inconsistent with a claim of right by under obligations by reason of his contract the other party."

of tenancy to keep that part of the channel Construing the allegations of appellants' second paragraph of complaint in the light from obstructions; that on May 15, 1913, ap

on appellants' land cleaned out and free of the authorities, it is clear, we think, that it is sufficient to withstand a demurrer for the channel just immediately south of the

pellants constructed a concrete dam across want of facts. The special finding of facts discloses, among lants and appellee, which has impeded the

boundary line between the lands of appelother things, that appellee and certain other persons are the owners of lands in Sullivan flow of water to the injury of appellee's land. county, which are productive, being improved the foregoing is a brief summary, do not war

If the facts found by the court, of which by drainage, the natural drainage being to the southwest; that before the lands in this rant the conclusions of law stated by the neighborhood were improved by drainage and court, then appellee was not entitled to rewhile in their original state, there was a low

lief under either the issue of obstructing an trough or swale extending in a northeasterly easement or that of a natural water course. and southwesterly direction for a distance

In this behalf, appellants earnestly insist of about two miles; that starting some dis- that the facts found disclose that the dam tance above appellee's real estate, said trough surface water alone, and that the issue join

erected by them turned from their premises or swale extends across the intervening lands and across the lands of appellee and a small ed on the first paragraph of complaint, which portion of appellants, and into this trough involves the obstruction of a natural water or swale a large body of water gathered dur-course, has not been established; and that ing the rainy seasons of the year and for the conclusion of law reached by the court from 6 to 9 months each year, and from time to this effect is erroneous, and that the facts immemorial the water thus collected moved found are not sufficient to authorize a con

clusion of law that an easement has been ac in a sluggish current to the southwest across the lands between the starting point and its quired by appellee over appellants' land un terminus, which terminus was some distance der the issue joined on the second paragraphe below appellants' land in a gravel pit, where

of complaint. by the process of percolation it disappeared; the water dammed against was surface wa

[2] It need only be said in passing that it that on the Woodward land some distance above appellee's land there is a well-defined ter, then there could be no recovery under channel with bed and banks which was cut the issues joined as to the first paragraph of through the turf by erosion of the water and

complaint. through which the water has flowed as it

It has been held generally that a natural has been gathered into the trough or swale water course must have a substantial existin this locality; that there is now and has ence; that there must be a bed and banks been for more than 20 years a well-defined and evidence of a permanent stream of runchannel along the lowest part of the course ding water, but that it is not essential in occupied by the trough on appellee's land, order to be thus classed that it flow continuand which was originally the swale hereto ously throughout the year. Walley v. Wiley, fore mentioned; that an artificial channel 56 Ind. App. 171, 104 N. E. 318; Vandalia R. has been maintained for many years on the Co. v. Yeager, 110 N. E. 230; Schlichter v. lands of both appellee and appellants, in Phillipy, 67 Ind. 201; Weis v. City of Madi. which a stream of water with a current has son, 75 Ind. 241, 39 Am. Rep. 135; Rice v. flowed from 6 to 9 months each year; that City of Evansville, 108 Ind. 7, 9 N. E. 139, 58 on the lands immediately east of appellee's

Am. Rep. 22. land what was an open channel has been

The general rule of law announced as to constructed into a closed drain consisting of the elements or characteristics that go to an eight-inch tile, and where the water course complete or make up a natural water course crosses the highways, it does so through a 24 is subject to some modification when the facts and 36 inch sewer, respectively; that in the are such as to warrant the same. year of 1897, a tenant in possession of appel

Farnham on Waters (p. 1562), after referlee's farm cut a small artificial channel across ring to the material elements of a water that part of appellants' land traversed by

course, says: the water course, into which was collected istence of a stream of water flowing for such

“The distinguishing characteristic is the exthe water at this point and through which a length of time that its existence will furnish the water from above has flowed; that prior | the advantages usually attendant upon streams


of water. The court having attempted to de- , water course under consideration, in view of scribe this condition as a stream usually flow- the facts found by the court, must be reing in a definite channel, having bed and sides or banks and usually discharging itself into garded as a natural water course, and under some other stream or body of water.

the authorities, appellee was entitled to the These definitions are rather more in the nature relief granted under the issues joined on the of limitations than definitions. The most sat- first paragraph of complaint so far as the isfactory definition is that a water course is the conclusions of law are concerned. The concondition created by a stream of water having clusion reached on the question raised on the a well defined and substantial existence. constitute a water course the flow of water exceptions to the conclusions of law makes it must possess that unity of character by which unnecessary for us to consider the issues the flow on one person's land could be identi- joined under the second paragraph of comfied with that on his neighbor's land."

plaint in this respect. In Case v. Hoffman, 84 Wis. 438, 54 N. W.

[5] As to the question for consideration 793, 20 L. R. A. 40, 36 Am. St. Rep. 937, it embraced within the error predicated upon was said upon authority:

the overruling of appellants' motion for a "If a water course is lost in a swamp or lake, new trial, viz. that the decision of the court it is still a water course if it emerges therefrom in a well-defined channel, or if it spreads is contrary to law and not sustained by suffi.

a meadow, and it can be identified or cient evidence, the record discloses that each traced as the same stream, it is still a water essential fact necessary to maintain the issue course."

joined on the first paragraph of complaint is And in Mitchell v. Bain, supra, the follow- supported by some evidence, and where ing language is used:

there is some evidence supporting every ma"A stream does not cease to be a water course terial point involved under an issue as thus and become mere surface water because at a joined, there can be no reversal on the ground certain point it spreads over low ground sev that the evidence does not sustain the decieral rods in width and flows for a distance with-sion of the court. Poetker v. Tindle, 45 Ind. out a defined channel."

App. 455, 91 N. E. 45. Therefore we need not In the recent case of Vandalia R. Co. v. consider this assignment of error as to the Yeager, supra, this court, after a review of issue joined on the second paragraph of comauthorities, held that under some circum

plaint. stances a stream may be classed as a natural

Finding no error in the record calling for a water course in the absence of a well-defined reversal of the decree and judgment, the channel as that term is usually understood,

same is affirmed. as where the water through a part of its course spreads over considerable portion of

(63 Ind. App. 309) land. [3, 4] The finding of facts in the case at


STATES FIDELITY & GUARbar does not show that originally, and before the real estate in question was improved,

ANTY CO. (No. 9579.) there was a marked depression in the earth (Appellate Court of Indiana, Division No. 1. surface in the form of a channel of a stream

Dec. 19, 1916.) extending throughout the entire course of 1. FRAUDS, STATUTE OF 14–CONTRACTOR'S what is termed the trough or swale. At plac BOND. es there was, however, a marked depression or

Under the statute of frauds (Burns' Ann. surface indication of a channel, and through-in writing; it being for the purpose of charg

St. 1914, § 7462), a contractor's bond must be out the entire course of the trough or swale ing a person upon a special promise to answer there was a flowing current to the southwest, for the default of another. as it flows at the present time. This, as a

(Ed. Note.-For other cases, see Frauds,

Statute of, Cent. Dig. $ 14; Dec. Dig. moving stream or body of water, was pos- 14.) sessed of permanency in that it flowed from

WAIVER time immemorial 6 to 9 months in each year. 2. FRAUDS, STATUTE OF Om 131(1)

BY PAROL. Except where this course crosses the high

Waiver by surety of provision in contracways and where converted into a tile drain tor's bond relative to the time within which there is now and has been for many years a

suit must be brought thereon is not binding well-defined channel, a part of which may be quired, by the statute of frauds (Burns' Ann.

unless in writing, since the bond itself is retermed an artificial channel and a part of St. 1914, 8 7462), to be in writing. which on the lands some distance above ap [Ed. Note. For other cases, see Frauds, pellee's is still in its original state caused Statute of, Cent. Dig. 8 283; Dec. Dig. by the erosion of the water itself. As to that

131(1).) part of the channel that has been closed or 3. PRINCIPAL AND SURETY 59 SURETY improved by the landowners, it has not by


The rule that, where a surety bond admits reason thereof lost its characteristics as a of two interpretations, a construction favorable natural water course, as it has been held that to the obligee should be adopted, applies only the characteristics of a natural water course where the terms of the bond are ambiguous are not changed by confining it in an arti

and uncertain. ficial channel. Walley v. Wiley, supra.

[Ed. Note.-For other cases, see Principal

and Surety, Cent. Dig. $$ 103, 10312; Dec. Dig. We have reached the conclusion that the 59.)

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4. PRINCIPAL AND SURETY W123(1) - Con “Know all men by these presents, that W. P. TRACTOR'S Bond.

Black of Fishers, Indiana (hereinafter called The provision of a contractor's bond requir- the principal), and the United States Fidelity & ing notice of default by principal not later than Guaranty Company, a corporation created and 30 days after knowledge of such default is `a existing under the laws of the state of Maryvalid condition.

land, and whose principal office is located in (Ed. Note. For other cases, see Principal Baltimore City, Maryland (hereinafter called and Surety, Cent. Dig. 88 304-309; Dec. Dig. the surety), are held and firmly bound unto ww123(1)]

Holleran & Haverstick, Noblesville, Indiana 5. PRINCIPAL AND SURETY Ow123(2)–CON- just sum of five thousand ($5,000.00) dollars,

(hereinafter called the obligee), in the full and TRACTOR'S BOND-NOTICE OF DEFAULT.

lawful money of the United States, to the payThe requirement of giving of notice of de ment of which sum, well and truly to be made, fault in contractor's bond was not complied the principal binds himself, his heirs, executors with when the board of commissioners notified and administrators, and the said surety binds the obligee on May 13th that work should be itself, its successors and assigns, jointly and begun within 10 days in order to complete it severally, firmly by these presents. by August 1st, to which time they had extend-sealed and delivered this 30th day of Septem

Signed, ed the time limit of the contract, and, imme-ber, A. D. 1912. diately upon receipt of such notice, written notice of the contractor's. "default” and the certain written contract with the obligee dated

“Whereas, said principal has entered into a order of the board were given to the surety;

for the alleged notice of default having been given July 17, 1912, to furnish labor and materi more than 212 months before the expiration of the completion of a gravel road, known as the the time limit.

Eiler Road, in accordance with contract which

is made a part of this bond: [Ed. Note.-For other cases, see Principal and

"Now, therefore, the condition of the foregoSurety, Cent. Dig. $ 310; Dec. Dig. Om ing obligation is such that if the said principal 123(2).]

shall well and truly indemnify and save barm6. PRINCIPAL AND SURETY 129(1) - Dis- | less the said obligee from any pecuniary loss CHARGE OF SURETY-WAIVER.

resulting from the breach of any of the terms, The acceptance and retention by surety on covenants and conditions of the said contract a contractor's bond of a renewal premium was on the part of the said principal to be performnot a waiver of the surety's right to notice of ed, then this obligation shall be void; otherthe contractor's default, where there was no de- wise to remain in full force and effect in law: fault by the contractor until several months Provided, however, that this bond is issued after the payment of the premium.

subject to the following conditions and provi[Ed. Note.-For other cases, see Principal sions: and Surety, Cent. Dig. 88 366, 369, 370426

"First. That no liability shall attach to the 372; Dec. Dig. 129(1).]

surety hereunder unless, in the event of any de

fault on the part of the principal in the perAppeal from Circuit Court, Hamilton formance of any of the terms, covenants or con

ditions of the said contract, the obligee shall County; Meade Vestal, Special Judge.

promptly, and in any event not later than thirAction by the Wainwright Trust Company, ty days after knowledge of such default, deReceiver, against the United States Fidelity liver to the surety at its office in the city of & Guaranty Company. From judgment for Baltimore, written notice thereof, with a state

ment of the principal facts showing such dedefendant, plaintiff appeals. Afirmed.

fault and the date thereof; nor unless the said Gentry & Campbell, of Noblesville, for ap obligee shall deliver written notice to the surepellant. Pickens, Moores, Davidson & Pick-ty at its office aforesaid, and the consent of

the surety thereto obtained, before making to ens, of Indianapolis, for appellee.

the principal the final payment provided for under the contract herein referred to.

"Second. That in case of such default on the MENUTT, J. This was an action by ap- part of the principal the surety shall have the pellant, as receiver for the firm of Holleran, right, if it so desire, to assume and complete Haverstick, Wheeler & Patterson, in the or procure the completion of said contract; and

in case of such default, the surety shall be subcourt below, against appellee as surety upon rogated and entitled to all rights and propera contractor's bond, the contractor being one ties of the principal arising out of the said conBlack. The appellee demurred to appellant's tract and otherwise, including all securities and complaint, the same being the fourth amend- indemnities theretofore received by the obligee ed, for want of sufficient facts, which was tages and credits, due to the principal at the

and all deferred payment, retained percensustained. This action of the court is the time of such default or to become due thereonly error assigned.

after by the terms and dates of the contract. The contract, which is made a part of the liable for a greater sum than the penalty of

“Third. That in no event shall the surety be complaint by exhibit, required said Black to this bond, or subject to any suit, action or othplace the gravel on two public highways of er proceeding thereon that is_instituted later Hamilton county known as the Eiler Road | than the 30th day of July, A. D. 1913. and the Hunter Road, which appellant's firm be liable for any damage resulting from, or for

"Fourth. That in no event shall the surety had contracted with the board of commis- the construction or repair of any work damag. sioners of said county to construct accord- ed or destroyed by act of God, or the public ing to certain plans and specifications. Said enemies, or mobs, or riots, or civil commotion, Black agreed to place the gravel on said

or by employés leaving the work being done un

der said contract, on account of so-called roads on or before the 1st day of January, 'strikes' or labor difficulties. 1913, and the contract was entered into on "In testimony whereof, the said principal has the 17th day of July, 1912.

hereunto set his hand and seal and the said The bond, which is also made a part of cuted by its attorney in fact, sealed with its

surety has caused these presents to be exethe complaint by exhibit, reads as follows:j corporate seal, the day and year first written.”

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

The complaint alleges, in substance, that, yard in excess of said Black's contract, to on March 10, 1915, the appellant was ap- plaintiff's damage in the sum of $3,757.68; pointed receiver for said firm; that on July that appellant, on September 14, 1914, de17, 1912, said firm entered into said con- manded of appellee said sum, but that aptract; that in consideration of said contract pellee refused to pay any part thereof; that and as a part thereof said appellee, as sure said sum, with interest, is long past due ty for the contractor, Black, executed to said and unpaid, and judgment therefor is de firm said bond for the faithful performance manded. of said contract; that said contractor com Appellant, in its brief, under “Points and plied with the terms of said contract relating Authorities,” states only two points, which to said Hunter Road and received the con are as follows: sideration therefor, but failed to perform "1. A condition in a bond executed by a any part of the work on said Eiler Road; surety company, limiting the time within which that on or before said 1st day of January, for the benefit of the company, may be waived.

an action may be brought on such bond, being 1913, said Black and said firm mutually

“2. Contracts of surety companies are conagreed to and did extend the time for the tracts of indemnity, and as such fall under the completion of said work and in consideration rules of construction applicable to contracts of

insurance." of such extension said firm agreed to waive any claim for damages for the work not be

Appellee does not dispute the correctness ing completed on or before said 1st day of of either of said points as abstract legal January, 1913, and that said Black upon his propositions, but insists that, while a condipart agreed to pay, and did pay, to appellee tion in a surety bond, limiting the time withthe sum of $25 for the extension and securi- in which an action thereon may be brought, ty of said bond, of all of which facts said may be waived, no waiver of such condition

is shown in the complaint for the reason that appellee then had knowledge; that after the

the requirement that suit be brought within extension of the time for the completion of

a certain time is shown to be in writing, said work appellant, said Black and appel while the alleged waiver is shown to be in lee appeared before the board of commis- parol, and therefore within the statute of sioners of Hamilton county and obtained

frauds, from it an order extending the time for the

[1] The bond in suit was not only in writcompletion of said Eller Road; that appelleeing, but was for the purpose of charging knowing that said bond contained a provision “that in no event shall the surety be appellee upon a special promise to answer

for the default of another, and therefore subject to any suit or other proceeding there under the statute of frauds had to be in on that is instituted later than July 30, writing. Section 7462, Burns' 1914; Knight 1913," did, on or about November 20, 1913, & Jillson Co. v. Castle, 172 Ind. 97, 87 N. E. accept from said Black an additional premi- 976, 27 L. R. A. (N. S.) 573. um of $25 for the continuation and extension

In the case of Wellinger v. Crawford, 48 of the terms of said bond, and that appellee Ind. App. 173, 89 N. E. 892, 93 N. E. 1051, has ever since retained said sum; that on No- it is held that because contracts for a comvember 21, 1913, said firm, believing said mission for a sale of real estate must be in bond was still in force and relying upon its writing (section 7463, Burns' 1914), such consecurity, together with said Black and one tracts cannot be varied or waived by parol. Hines, who was then and there the duly au

In Burgett v. Loeb, 43 Ind. App. 657, 660, thorized local agent of appellee, appeared be 88 N. E. 346, it is held that since a lease for fore said board, and that said Hines, as

more than 3 years is required to be in writspokesman for said parties, asked for and ing (section 7462, Burns' 1914), it could only was granted an order by said board extend- be changed or modified by a written instruing the time for the completion of said Eiler ment. See, also, Bradley v. Harter, 156 Ind. Road to August 1, 1914; that on May 13, 499, 60 N. E. 139; Napier Iron Works v. 1914, said board notified said firm that work Caldwell & Drake Iron Works, 110 N. E. should begin on said road within 10 days 714. thereafter, in order to complete it by the

[2] It is only by inference from conduct time allotted; that immediately upon receipt that the complaint attempts to show an oral of notice of said demand, and within 30 days waiver of the provision in the bond relative after knowledge of default by said Black, to the time within which suit must be or on or about May 13, 1914, written notice brought, but even if a positive, direct waiver of such default and the order of said board of this provision were alleged, we are of the was given to appellee, at its office in Balti- opinion, under the authorities, that such a more, Md.; that said Black neglected and waiver is not binding upon appellee, since wholly failed to perform any part of his is not shown to be in writing. work on said Eiler Road; that appellee fail [3] Appellant has pointed out no ambiguity ed and refused to perform any of said or uncertainty in the bond, nor does it conwork; that by reason thereof said firm, by tend that the bond admits of more than one its legal representative, was compelled to, interpretation. It is the law that where a and did, perform said work at a cost of $1.05 bond is ambiguous or uncertain or is open to

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