1. WATERS AND WATER COURSES 118 [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. 118.] 2. WATERS AND WATER COURSES 171(2)— PRESERVATION OF RIGHT OF WAY-OBSTRUCTION OF SURFACE WATERS. A railroad company in construction and maintenance of its road over a natural watercourse must exercise due care not to obstruct the natural flow, not only of usual and ordinary high water, but of floods due to natural causes such as an ordinarily prudent person should reasonably anticipate, considering the topography of the country, the character of the soil, climatic conditions, and all other conditions and circumstances apparent to a person of usual foresight and experience. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 218, Dec. Dig. 171(2).] 3. WATERS AND WATER COURSES 171(2)FLOOD WATERS - OBSTRUCTION-LIABILITY The flood channel of a stream cannot be obstructed without rendering the parties so acting liable to respond in damages to any one injured thereby. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 218; Dec. Dig. 171(2).] 171(1)— 4. WATERS AND WATER COURSES [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 216, 217, 221, 222; Dec. Dig. 171(1).] 5. WATERS AND WATER COURSES A railroad which crosses the bed of a natural stream does not have the same rights in regard thereto as a proprietor of land has in regard to natural surface waters. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. 118.] 7. WATERS AND WATER COURSES 179(1)— OBSTRUCTION OF NATURAL STREAMS-AcTIONS-PLEADING AND PROOF-VARIANCE. In an action for damages by obstruction of flow of a natural stream, where complainant alleged that the flow permanently impaired his store building to the extent of $1,000 for repairs, he was properly permitted to make proof of the cost of repairs, but offered testimony tending to prove permanent injuries was properly excluded. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 88 216, 217, 221, 222 Dec. Dig. 179(1).] 8. WATERS AND WATER COURSES 178(2)— OBSTRUCTION OF FLOW DAMAGES - MEAS URE. In an action for damages by overflow of waters of a natural stream caused by construction of a railroad embankment, plaintiff can show as damages the loss to the rental value of his land, where he proceeds with the theory that the nuisance is abatable, since when the nuisance does cease, damages recoverable are only such as have already accrued. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 255; Dec. Dig. 178(2); Damages, Cent. Dig. §§ 2761⁄2, 282.] Appeal from Circuit Court, Monroe County; Robert W. Miers, Judge. Action by Charles C. Dunn against the Chicago, Indianapolis & Louisville Railway Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered. Ira C. Batman, of Indianapolis, and Robert G. Miller and James W. Blair, both of Bloomington, for appellant. E. C. Field and C. C. Hine, both of Chicago, Ill., and J. E. Henley, of Bloomington, for appellee. IBACH, P. J. Action for damages on account of the overflow of appellant's property occasioned by the alleged negligence of appellee in obstructing a natural water course. There is also a prayer that the alleged nuisance be abated. A trial resulted in a verdict and judgment for appellee. The material facts of the case are not controverted. The questions to be determined therefore are questions of law. Appellant owns certain lots in the town 118 of Stinesville. Upon one there is a store building. Appellee's railroad runs north and south through the town along Railroad street, which is 100 feet wide. The railroad occupies about 40 feet of the street, and about 20 feet along the east side is used for general travel. Appellant's lots face the west and abut on this portion of Railroad street, 6. WATERS AND WATER COURSES 171(2)- and lay between Spring street on the south FLOOD WATERS-OBSTRUCTION-RIGHTS OF and Main street on the north. A stream of RAILROAD. water flows down Spring street from the east, thence into Railroad street, and from there it flows in a northwesterly direction under appellee's tracks and roadbed through a culvert. This stream takes its source in a spring about one mile to the east of the [Ed. Note.-For other cases, see Waters and town, but before it reaches Railroad street Water Courses, Cent. Dig. § 218; Dec. Dig. a number of other springs flow into it, drain171(2).] ing about 400 acres of rough and broken A railroad in crossing a natural water course and erecting an embankment and culvert thereover must take into account conditions manifest at previous times of high water and of the volume of water which would probably flow during flood time, and provide ample space to permit the flow of the waters. usefulness. Any such company which neglects or willfully fails so to do is liable in damages to any person injured thereby. Section 5195, cl. 5, and section 7683, Burns 1914; Vandalia R. Co. v. Yeager, 60 Ind. App. 118, 110 N. E. 230. [1] The right of a railroad company to employ all necessary methods as it deems expedient to prevent surface water from flow an individual has the right to take such necessary measures as he may deem expedient to turn surface water from his premises, without being liable for the damage done by such water, the flow of which has been thus obstructed, is too well recognized to require the citation of authority. land, and the stream is between 150 and 200 feet higher at its source than it is at Railroad street. After rains the water flows down the stream with a rush. Appellee graded its roadbed along Railroad street between Spring street and Main street to a width of 40 feet, and a height of 13 feet. Some time prior to 1874 an open wooden culvert, 10 or 12 feet wide, was washed out, and appellee or its predecessor replaced it with the one in ques-ing onto and across its right of way, just as tion, which is built of stone, and is 3 feet 6 inches wide by 5 feet and 1 inch deep. About the year 1892 appellee or its predecessors constructed a switch, which appellee has since maintained, from its main line in Railroad street, extending southeast from a point south of the culvert, which switch entirely obstructs two other water courses that crossed appellee's right of way to a creek beyond, and thereby the waters from these streams were turned down Railroad street to Spring street where they met the other waters which flowed down that street, and then passed on through the culvert. After a hard rain of an hour or more the culvert always failed to carry off the water, and as there was no oth-narily prudent person should reasonably aner means of escape it backed up over a portion of the town, including appellant's premises, and oftentimes raised as high as appellee's grade. The first overflow testified about occurred in 1875, others in 1896, 1904, 1906, and two in 1912, all much of the same character and causing similar damages to those described in appellant's complaint, which covered the overflow of 1912. On all such oc-struction of its road casions the water which was backed up by the grade and insufficient culvert passed off with the other waters of the stream just as rapidly as the size of the culvert would permit. It is clear that appellee and its predecessors recognized the stream in question to be a "natural water course," as that term is used in the law, by first constructing the open wooden culvert, and then when that was washed away by erecting another more substantial in character to enable its railway to pass over such stream. It is also apparent from the record that both parties tried the case on that theory, and the uncontradicted evidence supports that theory. The statutes of this state give to railroad companies the right to cross a stream of water, but they are also required by the same statutes to restore and maintain it substantially in its former condition and in such manner as not to unnecessarily impair its [2] The law is also well recognized that a railroad company in the construction and maintenance of its road over a natural water course must exercise due care not to ob struct the natural flow of the water course, and this includes not only such rises of high water as are usual and ordinary, but also floods due to natural causes, such as an ordi ticipate, considering the topography of the country, character of the soil, climatic conditions, and all other conditions and circumstances apparent to a person of usual foresight and experience. As was said by the Supreme Court of this state: "It was incumbent on appellant in the conto take notice of this character of the country, and provide ample accommodations for the free passage of the waters over its right of way at all seasons of the year." New York, etc., R. Co. v. Hamlet, 149 Ind. 344, 352, 47 N. E. 1060, 1063. See, also, 40 Cyc. 574. [3] Neither can the flood channel of a stream be obstructed without being liable to respond in damages to any one injured thereby. Clark v. Patapsco Guano Co., 144 N. C. 64, 56 S. E. 858, 119 Am. St. Rep. 931. [4] Notwithstanding the evidence in this case and the rules of law applicable thereto, the court gave the following instruction: follow that because damage was done on ac"In a case of this kind it does not necessarily count of overflow that a railroad company is liable therefor. It is not the legal duty of a railroad company to make openings through its tracks large enough to prevent the accumulation of water on the upstream side. A railroad company under such conditions is only required to make its opening large enough to take care of the water which will flow within the bed and this it has performed its legal duty. So in the banks of a water course, and when it has done case at bar, if you find from the evidence that there was a small water course crossing defendant's right of way in Stinesville, which was sufficient to accommodate the water which would flow within the bed and banks of this water course, and at the time the damage complained of was done there was a heavy downpour of rain which caused the water to rush down from the nearby hills in great quantity and overflow the banks of this small water course, and in that way accumulate on the upstream side of defendant's railroad grade, and that the damage to plain tiff's property was done by this water overflow-through its right of way at all seasons of ing said banks, your verdict in this case should the year. be in favor of the defendant." The undisputed evidence is that the ac[5] This instruction is not in harmony cumulated water which damaged appellant's with the evidence and with our view govern- property was on the upstream side of the ing this case. Our courts, in the cases here- embankment, and as the jury was compelled tofore cited, have fully discussed and deter- to follow the instructions of the court, it was mined what shall constitute surface waters, therefore, in view of this record, error to and we see no reason for disturbing the conclusions already reached. It is sufficient to say that under these holdings the rights of appellee are not such as a proprietor may have in surface water. The parties treated the stream in question as a natural water course, and the evidence shows without contradiction that the water which caused the injury to appellant's property was the overflow water of such water course and at a time of ordinary flood. It was not water which had become separated from the main stream so as to prevent its return. Overflow water, it is true, which had passed over the low-water banks of the stream, and yet at all times remained inseparably united with the water which remained within such banks and was simply held back until like the other waters of the stream they might escape through the culvert, and which the evidence shows did pass through with the remaining waters of the stream as rapidly as the size of the culvert would permit. It is apparent that a larger culvert would have rendered the embankment harmless to appellant's lots, and the failure to make it of sufficient size enabled the embankment to force flood waters to flow back over and upon appellant's lots until such time as all the waters of the stream might flow through the opening provided for that purpose. It is also clear that the facts surrounding the rise in question were similar to the facts attending many other floods of the same stream after heavy rains. [6] Appellee was required when erecting the embankment and culvert complained of to take into account the conditions manifest at other times of high water. They were required to take note of the changes in the surrounding territory, and the volume of water which would probably flow through this stream during flood times, in view of all the conditions of which it was required to take notice and then provide ample accommodations for the free passage of all such waters instruct: "It is not the legal duty of a railroad company to make openings through its track large enough to prevent the accumulation of water on the upstream side." [7] It becomes unnecessary for us to discuss at length other errors assigned. It is sufficient to say we are of the opinion that the complaint does not proceed upon the theory that there were any permanent injuries to the real estate through the effect of the flood waters, although this averment is used in the complaint: "It permanently impaired the said store building to the extent of $1,000 for repairs." Hence when appellant was permitted to make proof of the cost of these repairs he was proving the apparent theory of his complaint, and the offered testimony tending to prove permanent injuries was properly excluded. The complaint proceeds also upon the theory that the nuisance was abatable. [8] Appellant was permitted to show damage to his lots by proving loss to the rental value thereof. We think the trial court adopted the proper rule for ascertaining appellant's damages. In the consideration of a similar case this court said: "It is the settled law in this state, as applied jury is of such a nature as to be abatable, by to actions of this character, that where the inthe expenditure of either labor or money, the law will not presume its continuance, and that when, from the nature of the case, the cause of the injury is removed, the injurious consequences will cease, the damages recoverable from the wrongdoer are only such as had accrued before action was brought." Southern R. Co. v. Poetker, 46 Ind. App. 295, 91 N. E. 610. We are also of the opinion that the instruction tendered by appellant and refused was, so far as it had to do with the issues, substantially covered by others given. Appellant's motion for a new trial should have been sustained. Cause reversed. New trial ordered. BATMAN, J., not participating. (64 Ind. App. 677) 1. APPEAL AND ERROR SIGNMENTS. Where none of the demurrers referred to in Appeal from Circuit Court, Washington KOBER V. BOYCE et al. (No. 9197.) * County; James P. Hughes, Special Judge. Action by William A. Kober to recover on (Appellate Court of Indiana. Jan. 26, 1917.) promissory notes, to foreclose a mortgage, 757(2)—BRIEFS-AS- and to expunge from the record a release of the mortgage, against William A. Boyce and assignments of error, nor the substance thereof, others, wherein defendants Henry C. Fear is set out in appellant's brief, such assignments and Laura B. Fear filed a cross-complaint to present nothing for the consideration of the Ap-quiet title to the real estate described in the pellate Court. mortgage. There was personal judgment for plaintiff against defendant Boyce only, a decree quieting the Fears' title as against plaintiff, and judgment in favor of all other defendants for their costs, and plaintiff appeals. Judgment affirmed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757(2).] 2. APPEAL AND ERROR 1078(1)-ASSIGN MENT OF ERROR-WAIVER. An assignment is waived by appellant's failure to discuss it in his brief. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4256; Dec. Dig. 1078 (1).] The Appellate Court will not disturb the finding on a disputed question of fact, if there is evidence in the record on which the finding can stand. Mitchell & Mitchell and W. W. Hottel, all of Salem, for appellant. H. H. Griffin, of Sheridan, and Elliott & Houston, of Salem, for appellees. DAUSMAN, J. This action was instituted by appellant Kober to recover upon promissory notes, to foreclose a mortgage on real estate, and to expunge from the record a release of the mortgage, which release he al70-GROUNDS-INSUFFI-leged to be a forgery. Appellee William A. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. 1010(1).] 4. NEW TRIAL CIENCY OF EVIDENCE. Specifications that a finding is not fairly supported by the evidence, and that it is clearly against the weight of the evidence, state nothing recognized by the statute as ground for new trial in civil cases. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. 5. VENDOR AND PURCHASER FIDE PURCHASER-EVIDENCE. 70.] On cross-complaint of two defendants to quiet title in an action to recover on promissory notes, to foreclose a mortgage, and to expunge from the record a release thereof, alleged to be a forgery, testimony of a cross-complainant that before he purchased the land described in the mortgage from another defendant he required an abstract of the title thereto, and an affidavit made by his vendor, as a condition precedent to making the purchase, were properly admitted, as tending to prove that the cross-complainant was diligent in his effort to ascertain the condition of the title to the land he purchased, that he relied upon the public records as to the things disclosed by them, and on the affidavit of his vendor as to certain things not disclosed by the records, and that, as to plaintiff's claim, he was an innocent purchaser in good faith. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 606-608; Dec. Dig. 243.] Boyce suffered himself to be defaulted; all other appellees answered; and appellees Henry C. Fear and Laura B. Fear filed crosscomplaint to quiet title to the real estate described in the mortgage. The court found the facts specially and stated conclusions of law thereon. Personal judgment for appellant against appellee William A. Boyce only, a decree quieting the Fears' title as against Kober, and judgment in favor of all other appellees Kober's motion for a new for their costs. trial was overruled. The following is a condensed statement of the special finding of facts: (1) That on the 28th day of December, 1907, William A. Boyce and his wife, Edith H. Boyce, sold and conveyed by warranty deed to Andrewville E. Hunter and his wife, Ida V. Hunter, certain real estate in Washington county, Ind., and that said deed was duly recorded in the recorder's office of said Washington county on the 31st day of December, 1907. (2) That as part of the purchase price for said real estate, Andrewville E. Hunter ex6. NEW TRIAL ~~ 104(3), 105, 124(1) - ecuted his four promissory notes, payable to GROUNDS-NEWLY DISCOVERED EVIDENCE. the order of said William A. Boyce, at PeoNew trial will not be granted to hear new evidence merely cumulative or impeaching, where ple's Bank, Indianapolis, Ind., in 6, 12, 18, the alleged newly discovered evidence would not and 24 months from date, and in the sum of probably change the result, where the motion $500 each; that to secure the payment of does not contain a detailed statement of facts constituting the alleged diligence; that the said notes the said Hunter and Hunter on court may draw its own conclusion as to wheth- said day executed to the said William A. er or not there was due diligence, or where, if Boyce their mortgage on said real estate; the alleged diligence consists in having made inquiries, the time, place, and circumstances are and that said mortgage was duly recorded in not stated in the motion; that the court may the office of the recorder of said Washington know that such inquiries were made in the prop-county on the 31st day of December, 1907. er quarter and in due season. [Ed. Note.-For other cases, see New Trial, Cent. Dig. 88 183, 220-223, 229, 250-253; Dec. Dig. 104(3), 105, 124(1).] (3) That on the 28th day of December, 1907, William A. Kober sold to said William A. Boyce a tract of land in Jay county, Ind., For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes duly executed and acknowledged a release and satisfaction in full of the mortgage given by said Hunter and Hunter to said William A. Boyce and by him assigned to said the said mortgage was duly recorded in the office of the recorder of said Washington county on the 19th day of March, 1908. (8) That there is now due and unpaid upon the said $1,500 note executed by said Boyce to said Kober the sum of $1,009.93. and as part of the consideration therefor the March, 1908, at the city of Indianapolis, Ind., said William A. Boyce executed to said Kober the principal note herein sued on in the sum of $1,500, and to secure the payment thereof turned over to said Kober and assigned by indorsement thereon and by his written William A. Kober; and that said release of agreement, as collateral security, the four promissory notes mentioned in item 2 of this finding, and also assigned the said mortgage to said Kober; and that said mortgage and the assignment thereof were duly recorded in the office of the recorder of said Washington county on the 31st day of December, 1907. (4) That on the 28th day of December, 1907, the said Andrewville E. Hunter and his said wife sold and conveyed to said William A. Boyce by deed of general warranty the said real estate in said Washington county and mentioned in item 1 of this finding; that as part of the consideration for said real estate the said William A. Boyce assumed and agreed to pay all incumbrances on said land, including the four promissory notes execut-scribed in item 1 of the finding quieted as ed by Andrewville E. Hunter to William A. Boyce, which notes were secured by the mortgage mentioned in item 2 of this finding, being the identical notes and mortgage assigned to Kober by said William A. Boyce; and that said deed was duly recorded in the office of the recorder of said Washington county on the 19th day of March, 1908. (5) That on the 11th day of April, 1908, the said William A. Boyce executed to Henry C. Fear and Laura B. Fear a deed of general warranty to the said real estate in said Washington county, which real estate is described in item 1 of this finding; and that said Fear and Fear, before the filing of this suit, had fully paid the said William A. Boyce the purchase money therefor. Upon the finding of facts the court stated conclusions of law to the effect that the law is with Kober as against Boyce, and that Kober should recover of and from Boyce the sum of $1,009.93, together with his costs; that the law is with all the other appellees as against Kober; and that the law is with appellees Fear and Fear as against Kober with respect to their cross-complaint, and that they should have their title to the land de against him. The following errors are assigned: (1) In overruling appellant's demurrer to the seventh paragraph of the separate answer of appellees Henry C. Fear and Laura B. Fear. (2) In overruling appellant's demurrer to the ninth paragraph of the separate answer of said Henry C. Fear and Laura B. Fear. (3) In the conclusions of law stated on the special finding of facts. (4) In overruling the motion for a new trial. (5) In overruling appellant's demurrer to the second paragraph of the separate answer of appellees Andrewville E. Hunter and Ida V. Hunter. [2] The third assignment is waived by reason of appellant's utter failure to discuss it in his brief. Under the fourth assignment we are called upon to review the action of the court in overruling the motion for a new trial. This motion contains nine specifications: [3] (1) "The finding of the court is not sustained by sufficient evidence." [1] None of the demurrers referred to in the first, second, and fifth assignments, nor the substance thereof, is set out in appellant's (6) That said Fear and Fear, before receiv- | brief. Therefore these assignments present ing and accepting said deed from said Boyce, nothing for the consideration of this court. had the records of the offices of the clerk, Chicago, etc., R. Co. v. Walton, 165 Ind. 253, treasurer, auditor, and recorder of said Wash- 74 N. E. 1090. ington county examined and an abstract of the title to the real estate described in item 1 of this finding made, as said title appeared from the records of said several offices; that the said records showed that the mortgage given by said Hunter and Hunter to said Boyce had been fully paid and satisfied, and that a release of the said mortgage had been duly recorded in the office of the recorder of said Washington county, and that said There is an abundance of evidence tending release purported to have been signed by William A. Boyce and William A. Kober and purported to have been duly acknowledged by each of them before Noel Williams, notary public in and for Marion county, Ind.; and that said Fear and Fear, upon the faith of the foregoing facts, paid a valuable consideration for said real estate, to wit: $6,500, without any notice or knowledge of the claim of said Kober that said mortgage had not been satisfied. (7) That the said William A. Boyce and the to support the finding; and the utmost that can be said in favor of this contention is that the evidence is conflicting as to some of the matters in issue. The rule is that this court will not disturb the finding on a disputed question of fact if there is evidence in the record on which the finding can stand. Martin v. Cauble, 72 Ind. 67; C., H. & I. Ry. Co. v. Madden, 134 Ind. 462, 34 N. E. 227. (2) "The finding of the court is contrary to law." This point is waived by appellant's failure to discuss it in his brief. |