Jean v. Pennsylvania Co.

36 N.E. 159, 9 Ind. App. 56, 1894 Ind. App. LEXIS 11

Opinion

Gavin, J.

The appellant brought suit to recover damages for obstructing the passage of the overflow water of an adjoining stream, caused in times of high water by the river overflowing its banks and widening its current.

Filed Jan. 13, 1894.

The complaint presents strong grounds for relief, and appellant’s position is supported by authority. Byrne v. Minneapolis, etc., R. W. Co., 38 Minn. 212; Moore v. Chicago, etc., R. W. Co., 75 Ia. 263; Crawford v. Rambo, 44 Ohio St. 279; O’Connell v. East Tennessee, etc., R. Co., 87 Ga. 246, 48 Am. and Eng. Railroad Cases, 61.

But whatever may be the holdings of the courts of other States, in Indiana the question is not an open one,, and the law must be regarded as settled.

Every man has the right, not interfering with any natural or prescriptive watercourse, to protect his own land by levees or embankment thereon, from surface water which would otherwise flow upon it from adjoining lands, and this right is also possessed by a railroad company for the protection of its right of way. Taylor, Admr., v. Fickas, 64 Ind. 167; Cairo, etc., R. R. Co. v. Stevens, 73 Ind. 278; Shelbyville, etc., Turnpike Co. v. Green, 99 Ind. 205; Weis v. City of Madison, 75 Ind. 241; Hill v. Cincinnati, etc., R. W. Co., 109 Ind. 511; Weddell v. Hapner, 124 Ind. 315; Barnard v. Shirley, 135 Ind. 547, 34 N. E. Rep. 600.

It is further adjudged by these cases that the overflow caused by a river’s spreading beyond its banks in time of high water, must be regarded and may be treated as surface water.

The cases of Taylor, Admr., v. Fickas, supra; Cairo, etc., R. R. Co. v. Stevens, supra, and Shelbyville, etc., Turnpike Co. v. Green, supra, are decisive against the appellant’s right to recover.

Judgment affirmed.