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Clellan, Ex'r, 164 Ind. 131, 73 N. E. 97; McGrew v. Thayer, 24 Ind. App. 578, 57 N. E. 262. The court did find that appellant entered into a written contract with the grantor of appellee's lessor to fence its right of way before entering thereon to construct its road, and that the deed to appellee's lessor contained covenants of general warranty. The contract is set out in the findings. Under the findings, our consideration is limited to this contract, and the action of the parties thereto, as evidenced by the facts found. It is argued by appellant, that the findings exhibit an executory contract and create only rights in personam, and until executed there can be no rights in rem. We have no fault to find with this argument, and if this were an action wholly ex contractu, such argument would be exceedingly weighty, but for reasons hereinafter appearing, the theory of appellant is not controlling. The agreement to fence, in the very nature of things, had reference to and is in many essential elements a real covenant. It is the usual covenant contained in grants to railway companies for rights of way and construed by courts as covenants running with the land. It contained no stipulation to make it purely personal. Such covenants may be with respect to the interest in lands granted, or it may be in the interest of that portion not granted or the lands adjacent thereto, depending upon the reasonable intent of the parties as expressed in the contract. Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198. The stipulation in the contract to fence placed that duty upon appellant, and was in part the consideration for the proposed grant, and looking to the object and purpose of this feature of the agreement, it will be readily seen, that the interest intended to be benefited thereby was the unsold portion of the land, in the way of keeping animals off of appellant's right of way and away from danger.

The special findings exhibit a valid contract, founded upon a valuable consideration and in full force and effect. Its object is clear. The intention of the parties to be thereby accomplished is plain. While in terms it is executory, yet nevertheless it was the authority by which appellant entered into possession of the land and began and continued the construction of its road. By such possession and acts it must be held to have assumed all the burdens imposed by the authority under which it was acting. One of these burdens, that of building a fence along the east line of its right of way, by the contract is made a condition precedent to its possession for any purpose, but, in violation of such stipulation, it proceeded to construct its road over the land described in the contract and deposited thereon and exposed poisonous substances, which by reason of its neglect to fence, became and were accessible to appellee's cow, and from which poisonous substances she ate and thereby be

came poisoned and died. The court in Conduitt v. Ross, supra, refers to the case of Bally v. Wells, 3 Wils. 25, and quotes: "When the thing to be done, or omitted to be done, concerns the lands or estate, that is the medium which creates the privity between the plaintiff and defendant."

Appellant argues, and it is the law, that executory contracts to convey terminate with the execution of the deeds, and the rights of the parties are to be determined by the latter; "the presumption being that the deeds give expression to the final purposes of the parties." Flanders v. Chicago, etc., Ry. Co., 51 Minn. 193, 53 N. W. 544; Turner v. Cool, 23 Ind. 57, 85 Am. Dec. 449; Clifton v. Jackson Iron Co., 74 Mich. 183, 41 N. W. 891, 16 Am. St. Rep. 621; Close v. Burlington, etc., Ry. Co., 64 Iowa, 149, 19 N. W. 886. But, where the parties are proceeding under such executory contract containing a covenant evidently for the benefit of the remaining portion of the land, and no deed having been executed in the performance of such contract, it would seem to us that its provisions, under all the facts in this case, should and do extend to cover the damages sought

to be recovered by this action. Elliott, in his work on Railroads (section 1188) says: "Where a railway company obtains a right of way through a farm, and in consideration of the grant of such right of way, agrees to erect and maintain secure fences, it is bound to pay for animals killed and injured by its trains in cases where the animals come upon the track through the fault of the company in failing to erect fences according to the terms of its contract. Such agreements, when recited in the condemnation proceedings or the instrument by which the railway company obtains its right, are charges which run with the land, and are binding upon the company, even after the landowner has conveyed to subsequent grantees." In Gulf, etc., R. Co. v. Washington, 49 Fed. 347, 1 C. C. A. 286, where damages were sought for cattle killed, it was held that "when a railroad company enters into a contract with a landowner to fence its track through his premises for the protection of his stock, such a contract is obligatory on the railroad company as a statute requiring it to fence its track, and, so far as relates to the question of the liability of the railroad company for stock killed by reason of its breach of such duty, it is precisely what it is when the obligation to fence is imposed by statute." The case of Louisville, etc., R. Co. v. Sumner, 106 Ind. 55, 5 N. E. 404, 55 Am. Rep. 719, was an action to recover damages for hogs killed, as well as other items of damages, occasioned by the neglect of the company to build a fence along its right of way in violation of a recital in its deed, that such conveyance was made upon the consideration that $200 was paid, and upon the further consideration that the grantee covenanted * * "to fence said strip,"

held, that "it must be supposed that the defendant knew, when it made the contract, and in pursuance thereof exposed the plaintiff's farm to injury by throwing the fields open to the public and rendering it hazardous to allow his own animals to pasture where they would be exposed to destruction by defendant's trains, that special damages would result. Such damages must, therefore, have been within the reasonable contemplation of the parties when the contract was made. That the duty which the railroad company owed arose by contract, did not make the rule for the assessment of damages different from what it would have been if the duty to fence had been imposed by statute." In Toledo, etc., R. R. Co. v. Burgan, supra, the landowner executed a deed to the railroad company, and on the same day, by an extraneous contract, the company agreed to fence the right of way so conveyed to it "within a reasonable time," and this court in that case said: "The gravamen of the action is to recover damages for injuries sustained by appellee, as tenant of the landowner, on account of the failure of appellant to discharge the duties imposed on it by the contract mentioned and set out in the complaint. The duty of the company was a continuing one, running with the land. * * It is

not contraverted but that the tenant had the same right of action, if any, that the landowner would have had under the same circumstances." In our opinion the court did not err in its conclusion of law.

3. Appellant also insists that the trial court erred in overruling its motion for a new trial. What we have heretofore said in passing on other questions here presented disposes of all the questions arising and presented by appellant in support of this assignment.

Judgment affirmed.

(38 Ind. App. 110)

plaintiff by a warranty deed, excepting the 50 acres "off the south end thereof," previously conveyed to defendant. Held, that the 50 acres conveyed to defendant by plaintiff's grantor was not exclusive of the railroad right of way, but included it.

3. BOUNDARIES-SURVEY-EFFECT.

Where the line between adjoining land owners was established by the county surveyor after due notice, and the parties therein accepted and acted on the line by constructing a wire fence thereon, such survey, not appealed from, was prima facie evidence of the correctness of the corners so established and of the division line.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Boundaries, §§ 268–274.]

Appeal from Superior Court, Grant County; B. F. Harness, Judge.

Action by Charles Robinson and others against Mary L. Korporal and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. E. Steele, Simons & Childs, and T. B. Dicken, for appellants. St. John & Charles, for appellees.

MYERS, J. This is an action by appellees against appellants to quiet title, and in ejectment, and for damages for the wrongful detention of a strip of land 80 feet wide. The complaint is in two paragraphs, and a general denial to each formed the issues. Trial. Finding and judgment for appellees, quieting their title to the land in dispute, that they have immediate possession of the same, and recover of appellants $25 damages.

Overruling appellants' motion for a new trial is the only error assigned. Appellants have waived this error by failing to comply with rule 22, cl. 5 (55 N. E. vi), of the Supreme and this court. Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, 67 N. E. 183; Security, etc., Ass'n v. Lee, 160 Ind. 249, 66 N. E. 745; Boseker v. Chamberlain, 160 Ind. 114, 118, 66 N. E. 448; Rush, Adm'r, v. Kelley, 34 Ind. App. 449, 455, 73 N. E. 130. However, as appellees are not insisting on this advantage, and to some extent have sup

KORPORAL et al. v. ROBINSON et al. (No. plied certain omissions in appellants' brief,

5,638.)

(Appellate Court of Indiana, Division No. 1. May 29, 1906.)

1. APPEAL-ASSIGNMENTS OF ERROR-WAIVER -RULES-FAILURE TO COMPLY.

An assignment of error to the overruling of defendant's motion for a new trial was waived by defendant's failure to comply with Supreme Court Rule 22, cl. 5 (55 N. E. vi), specifying the form of appellant's brief. 2. DEEDS - CONSTRUCTION VEYED.

PROPERTY CON

Defendant and certain other heirs released and quitclaimed to a railroad company, for a consideration of $1, an 80-foot strip across certain land; the deed providing that the land so granted should be used for the construction and maintaining of a railroad and appurtenances. The railroad took possession of such strip off the south end of the track, on which it constructed and maintained a railroad. The tract was subsequently acquired by plaintiff's grantor, who conveyed to defendant 50 acres, of equal width throughout, off the south end of the tract, containing 98 acres more or less, after which the entire tract was conveyed to

the controlling question in this case may be

considered.

From the record and briefs in this case we learn that on September 4, 1894, Patrick Kiley became the owner of the following real estate in Grant county, Ind., to wit: The E. 1⁄2 of the N. W. 4, and 18 acres off of the west side of the N. E. 4, all in section On September 16, township 25, range 9 E. 12, 1894, Patrick Kiley and his wife conveyed by quitclaim deed to the appellant Mary L. Korporal a part of said land described as follows: "Fifty acres of equal width throughout off of the south end of the following described real estate, to wit: The east half of the northwest quarter, and eighteen acres off of the west side of the northeast quarter, all in section 16, township 25 north, range 9 east, containing in both tracts ninety-eight acres, more or less." On May 19, 1880, appellant Mary L. Korporal was the

owner of an undivided interest in said real estate first above described, and on that date she and her husband, Anthony Korporal, joined with all the other owners of said land in a release and quitclaim deed to the Frankfort, St. Louis & Toledo Railway Company, for "a strip of land forty feet wide on each side of the center of said railroad track, as the same shall be finally located over and across the following described land, to wit." After describing certain lands, including the land described in the Kiley deed, there is this proviso: "Provided, however, that the lands hereby granted shall be used for the purpose of constructing thereon and maintaining a railroad and appurtenances thereto." The consideration stated in this deed being $1. Said railroad company accepted said deed and took possession of an 80-foot strip of land off of the south end of said 98-acre tract, and constructed a railroad, and have ever since maintained a railroad there

On March 8, 1899, Kiley, by warranty deed, conveyed to appellees said 98-acre tract, "excepting therefrom, however, 50 acres of equal width throughout off of the south end of the above-described real estate, the same being heretofore deeded to Mary L. Korporal." The record further shows that in about two years after the deed was executed from Kiley to Mrs. Korporal, an attempt was made to determine the north boundary line of the 50-acre tract, and certain measurements were made, and a fence constructed on what was then then supposed to be her north line. Prior to May 1, 1902, this line again became a subject of question, and at the request of appellees, and after the statutory notice had been given appellant Mary L. Korporal, and pursuant to such notice on May 1, 1902, the county surveyor of Grant county proceeded to make a survey of said lands, and then and there established the corners and line dividing the land of appellants and the land of appellees. Thereafter, and on the line thus established by the county surveyor, a wire partition fence was constructed, appellants building the east half and appellees the west half, and possession of the lands was accordingly taken, by the parties as thus divided. About one year after the building of this fence, and in the nighttime, and prior to the bringing of this action, appellants moved the fence last constructed north 80 feet, and took possession of said 80-foot strip of land, to the exclusion of appellees. Appellants argue that the 80-foot strip of land, occupied by the railway company, ought not to be considered as a part of the 50-acre tract conveyed to Mrs. Korporal by Kiley, as was done by the surveyor. In our opinion appellants' contention is erroneous. The deed of Kiley to Mrs. Korporal contained no covenants of warranty. It in no manner refers to the land occupied by the railway company. By it Kiley conveyed only such title and interest as he then had in the 50 acres off of the south end of the

tracts therein described. Condit v. Maxwell, 142 Mo. 266, 44 S. W. 467; Arlington Mill & Elev. Co. v. Yates, 57 Neb. 286, 77 N. W. 677; Nidever v. Ayers, 83 Cal. 39, 23 Pac. 192; Montgomery v. McCumber, 128 Ind. 374, 377, 27 N. E. 1114. In the case last cited it is said: "The quitclaim deed only passes the title held by the grantor at the time of the conveyance"-citing authorities.

There is no claim of fraud or deception anywhere in this transaction, and each of the parties to this action is claiming title through the same source. It is agreed that that part of the 98-acre tract, including the strip occupied by the railway company, and south of the line so established by the county surveyor, contains 50 acres. This being true, and applying the law, as we understand it, to the facts here exhibited, it is unnecessary, in the decision of this cause, for us to determine the character of the title held by the railway company. At the time Mrs. Korporal received her deed from Kiley, the railway company had constructed and was operating its railroad over that portion of the 98-acre tract by virtue of an instrument in writing, to which appellants were parties, and which instrument was duly recorded in the record of deeds of Grant county. The very form of her deed was sufficient to put her upon inquiry as to the character of the title she was thereby receiving, and of itself notice that she was getting only a doubtful title. Meikel v. Borders, 129 Ind. 529, 533, 29 N. E. 29; Smith v. Rudd, 48 Kan. 296, 29 Pac. 310; Wright v. Tichenor, 104 Ind. 185, 3 N. E. 853. The facts in this case also show that the line between the land of Mrs. Korporal and appellees was established by the county surveyor of Grant county after due notice to appellant Mrs. Korporal. The parties to this action accepted and acted upon the line so established by building a wire fence thereon. This survey stands unappealed from and in full force and effect, and must be taken at least as prima facie evidence of the correctness of the corners so established, as well as the boundary line between their lands. Main v. Killinger, 90 Ind. 165; Waltman v. Rund, 109 Ind. 366, 10 N. E. 117; Sinn v. King, 131 Ind. 183, 31 N. E. 48; Hunter v Eichel, 100 Ind. 463.

It is true in this action appellees must recover upon the strength of their own title. The uncontradicted facts show that appellees, by virtue of their warranty deed from Kiley, became, and were at the time of the commencement of this action, the owners in fee simple of the entire 98-acre tract, except 50 acres off of the south end thereof, theretofore conveyed to Mrs. Korporal, and taking the north line of the 50-acre tract, as located by the county surveyor, as being prima facie correct, and, it being admitted that the land in controversy lies north of this line, in our opinion the facts and the law are with the appellees.

Judgment affirmed.

(38 Ind. App. 202) MINDNICH et al. v. KLINE et al. (No. 5,781.)

(Appellate Court of Indiana, Division No. 1. June 6, 1906.)

WATERS AND WATER COURSES-OBSTRUCTION OF STREAM-ESTABLISHMENT OF DRAIN.

The mere establishment of a drain along the north side of a river, and through the channel on that side between the shore and an island, which did not change the character of the place as a channel of the river, gives no right to erect a dam between the island and the south shore of the river, to the damage of riparian lands above.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Mary E. Kline and another against Martin Mindnich and another. Judgment for plaintiffs. Defendants appeal. Affirmed.

Spencer & Branyan and Geo. F. Felts, for appellants. Jno. Q. Cline, Claude, Cline, and S. E. Cook, for appellees.

BLACK, J. This was a suit brought by the appellees against the appellants for damages because of the construction of two certain dams in the Little Wabash river, for the abatement of the obstructions, and for a decree pereptually enjoining the appellants from so obstructing the river. The facts are shown by a special finding:

The appellee Mary E. Kline, was the owner in fee simple of certain described real estate in Huntington county, being 107 acres bordering the south side of said river, less than one-half mile above, or up the stream, from the lands of the appellants hereinafter mentioned. The appellee Bridget Roche was the owner in fee simple of certain other lands, being 80 acres bordering the south side of the river, likewise less than one-half mile above the lands of the appellants. From

time immemorial the Little Wabash river has been, and it still is, a natural water course, extending from a point five or six miles southwest of the city of Ft. Wayne, Allen county, in a southwestern direction through that county and Huntington county, and along and through the lands of appellees and the appellants, until it empties into the Wabash river at a point about two miles southwest of the city of Huntington. The Little Wabash river always has been, and is, a stream and water course with a natural, distinct, and well-defined channel, with natural bed and banks from its head to its mouth. Along the lands of the appellees and of the appellants, as well as at other places above and below them, the river is from 125 to 150 feet wide. The lands of the appellees are level and flat, and they require drainage, and the river is the only outlet for the drainage thereof. A number of small streams and ditches pass through them and empty into the river, and the appellees have constructed numerous lateral open ditches and tile drains for the drainage of

their lands, and these empty into said small streams and ditches. All of the lands have rich soil, and produce corn, wheat, oats, and grass. The appellants are the owners of certain lands lying on the north and south sides of the river, and extending across it, and including an island, below the lands of the appellees. The island is located in the river opposite the other lands of the appellants, and is about 50 yards wide and 150 yards long. At the island the channel of the river divides into a south branch and a north branch; the former channel being about 75 feet wide running along the south side of the island, and the north branch being a channel about 30 feet wide running along the north side of the island. From time im

memorial both of these branches have been, and they now are, natural water courses, and parts of the river, with natural and welldefined channels and beds and banks, and necessary to hold, contain, and convey the water which naturally flows in the river and passes at that place.

July 1, 1883, one Branstrater and others filed a petition under the drainage laws of this state, in the superior court of Allen county, for the location and construction of a ditch or drain in and along the Little Wabash river, and such proceedings were had in that court in said cause that a ditch or drain was established and afterward constructed in and along the river from a point in Allen county to a point in Huntington county about two miles below and down stream from these lands of the appellees and the appellants. The bed of the river at and along the lands of the appellees and the appellants, and in both of the channels at the island, and for two miles below it, was and is composed of limestone rock. It was provided in said proceedings that the ditch should be about 30 feet wide in the bottom and about 40 feet wide at the top, at and along this island, and the ditch was constructed of such width at that point. It was located along the north bank of the river for a mile or more below the island, and at the island it was continued along the north bank and in and along said north channel; and after its construction there remained over 75 feet of the old channel of the river for a mile below the island, and at the island said south channel was left open and unobstructed, and the remainder of the naturel channel below the island, as well as all of the channel on the south side of the island, was and is required and necessary to hold, carry, and convey the water which naturally collects and flows in the river at that place. The judgment of the superior court of Allen county does not limit the river to said artificial ditch; but "it was the intention of said court that said old channel above and below said island should be left open and unobstructed, and that all of said old channel on the south side of said island should remain open and unobstructed and as a part of said

river, and that the object of said proceedings in said court was to enlarge said river at said island and at other points above and below the same." The lands of the appellees and of the appellants were assessed for the construction of said artificial ditch. For several years after the construction of the artificial ditch the old channel on the south side of the island remained open and unobstructed, as a part of the river, and was used to hold and carry the water passing in the river at that place.

After the construction of the artificial ditch, the appellant Mindnich became the owner of the island and the other land to the north and south of it bordering on the river, and thereafter he opened up a stone quarry in the river, in the bed of the channel south of the island and opposite the lower end thereof. He also entered the river and constructed a permanent dam across the south channel at the east or upper end of the island and at the west or lower end thereof. These dams were constructed of stone and dirt and other materials; the upper one extending from the upper end of the island to the south bank of the river, a distance of about 75 or 80 feet, and being from six to seven feet high and completely closing up the south channel, so that the natural flow of the water of the river cannot pass through that channel, and the lower dam extends from the lower end of the island to the south bank of the river, and both of the dams are as high as the banks of the river at said points. The dams were constructed by Mindnich for the purpose of keeping out of the south channel water that would naturally pass through it, and of preventing such water from passing through it, in order that he might operate the stone quarry in the bed of the river. Afterward the other appellant, the Huntington Consolidated Lime Company, purchased an interest in the stone quarry and the land above mentioned, and both of the appellants have since been maintaining and from time to time enlarging the dams. By the construction and maintenance of the dams the appellants have reduced and taken away one-half of the size of the natural capacity of the river at the island. The artificial ditch on the north side of the island is wholly insufficient to hold and to carry the water which must pass at that point. The dams obstruct, greatly impede, and check the natural flow of the water and the current of the river at the island, and cause the water to congest, accumulate, and heap up at and above that point, by reason whereof the wa ter of the river above the island is caused to rise above the banks thereof, and it spreads over the lands and fields of the appellees and floods and overflows the same, and is caused to stand and remain on said lands and fields, and thus to damage and destroy the wheat, grass, and corn of the appellees, and the water in the river is caused to rise above the level of said small streams and

ditches on the lands of the appellees, and the water backs therein and thus destroys the outlet for said lateral drains. It was found that the water backing up and flooding these lands had damaged grass, wheat and corn on the land of the appellee Kline of the value of $10 and on the land of the appellee Roche of the same value. The court stated as conclusions of law that the appellants had no right to construct and maintain the dam in the south channel of the river; that the construction and maintenance thereof constituted a nuisance, and the appellees were entitled to have the same removed and abated within 90 days, and to have judgment against the appellants, the appellee Kline for $10, and the appellee Roche for the same amount; also, that the appellants should be perpetually enjoined from obstructing the south channel of the river at the island, and that the appellees should recover their costs.

The court's conclusions seem so satisfactory and necessary, as being in accordance with principles firmly established and well understood, that there would be no occasion for discussion but for the claim on the part of the appellants that as a result of the proceedings and judgment in the drainage proceeding in the Allen superior court the south channel closed up by dams should be regarded as no longer being a portion of the river, and that the intervening space between the island and the south shore of the river, inclosed between the two dams, should be treated as land reclaimed through the drainage proceeding. This claim on the part of the appellants cannot be sustained. Leaving out of consideration all of the finding which may be said to constitute conclusions of law, there are sufficient facts to show that the portion of the river in question was not obliterated or superseded or deprived of its character as a natural water course by the drainage proceeding. It existed as such when the appellants became landowners in that locality, and when for their own private gain they constructed the obstructions, which constituted a nuisance, being an interference with the comfortable enjoyment of the lands of the appellees, which the court below rightly would not tolerate when its aid was properly invoked. Certainly it appeared from the findings that the dams were erected in and across a place where the river had immemorially flowed as a natural water course, and the drainage proceedings shown in the findings do not appear therein to have changed the character of the place as a channel of such a stream and part of a river, whose waters the appellants had no right by their obstructions to cause to overflow the lands of the upper proprietors. Those proceedings, as appearing in the special finding, constituted no sufficient defense for the acts of the appellants shown by the findings.

Judgment affirmed.

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