Home/Indiana Supreme Court/Shelbyville & Brandywine Turnpike Co. v. Green

Shelbyville & Brandywine Turnpike Co. v. Green

99 Ind. 205, 1884 Ind. LEXIS 645
CourtIndiana Supreme Court
DecidedSeptember 27, 1884
DocketNo. 11,477
StatusPublished
Cited by27 cases

This text of 99 Ind. 205 (Shelbyville & Brandywine Turnpike Co. v. Green) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelbyville & Brandywine Turnpike Co. v. Green, 99 Ind. 205, 1884 Ind. LEXIS 645 (Ind. 1884).

Opinion

Bicknell, C. C. —

This was a complaint for an injunction by the appellee against the appellants.

The complaint alleges that the turnpike of the defendants passes through the plaintiff’s land; that the plaintiff, on the east line of his land, has built a levee to prevent overflow by high water; that the levee and turnpike are united together at the sides and on the top of the turnpike, but that the levee does not in any way interfere with the public or corporate use ■of the turnpike, or of the adjacent ground; that the defendants are wrongfully entering on the levee and detaching it from the turnpike by removing the earth from the levee for a distance of ten. feet, thereby exposing it to destruction, and the plaintiff’s land to overflow from Blue river; that the levee, as it was built, will prevent such overflow from coming on plaintiff’s land, as it often did, to his great damage, before said levee was built; that if said levee is detached from said turnpike as aforesaid, great and irreparable damage will be suffered by the plaintiff.

The defendants answered in three paragraphs, of which the [206]*206second was the general denial. The first and third paragraphs alleged, in substance, that the overflowings of Blue river had always gone over the plaintiff’s land and returned into the river below; that the plaintiff’s levee came upon the top of the turnpike and made it about three feet higher, making a sharp ridge there difficult for loaded teams, and that the effect of the levee was to flood the turnpike, making it impassable, whereby it obstructed the defendants’ right of way, to their great damage; that the plaintiff built his levee after being notified by the defendants not to do it; that they had only removed from the top and sides of their road the dirt unlawfully placed there by the plaintiff, and that this was all they intended to do.

The defendants also filed a cross complaint, alleging, substantially, the same matters, and claiming $1,500 damages, and that the plaintiff be required to remove his levee from the said right of way, and take it down so that it will not injure the defendants’ road.

The plaintiff replied denying the special defences, and he answei’ed the cross complaint by a denial. The issues were tried by the court without a jury, and at the request of the parties the court made a special finding of the facts and stated the conclusions of law thex’eon.

The following are the special findings:

“1. At the commencement of this suit the plaintiff was and still is the owner in fee simple and in possession of the real estate described in the complaixxt.
“ 2. In 1862 and 1863 the Shelbyville and Brandywine Turnpike Company constructed a turnpike road from Shelby-ville to Brandywine creek, in said county, which road was constructed through the lands of plaintiff, described in the complaint, and have been in the possession of said line of road since said time.
“4. That said real estate is contiguous to a stream of water, known as Big Blue river, which flows along a portion of the east and south sides of plaintiff’s land, which will [207]*207more fully áppear by reference to a map attached hereto, and to be considered as a part of this finding, as follows, to wit:
"Map A.

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Bluebook (online)
99 Ind. 205, 1884 Ind. LEXIS 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelbyville-brandywine-turnpike-co-v-green-ind-1884.