damages for the breach of contract, and appellant so claims his theory of the complaint to be, and we so treat it. There was a breach of the contract in excavating, so that the support to the adjoining property was removed; but the facts do not show such injury to his land or damage to him as to justify a recovery at this time upon that ground. There may have been special damage from the breach of the contract with respect to cutting beyond the stakes, and undermining the fence, and rendering it impossible, difficult, or expensive to construct or maintain a fence where appellant was under obligation to maintain it; but no damage is pleaded in these particulars, and there is no evidence upon the question of the expense of restoring the fence, or placing the earth in condition to maintain it. The evidence given, and that offered upon the question of the difference in the value of the land, embraces many items which were the direct result of the contract, and to be expected to occur, such as, a large unsightly excavation, the deposit of gravel over the land outside the pit from grading and laying the track and hauling over it, and interruption of the fence. The nearest approach to a possibly proper element of damages is that of $500 owing to his liability for damages from removing the lateral support to the land on the east. [1] It seems to be settled in this state that the proper element of damages from removal of lateral support from its natural state is the difference in the value of the land from which the support is removed, irrespective of negligence, as being the invasion of a natural right. Schmoe v. Cotton, 167 Ind. 364, 368, 79 N. E. 184; Moellering v. Evans, 121 Ind. 195, 22 N. E. 989, 6 L. R. A. 449; City of Aurora v. Fox, 78 Ind. 1; Payne v. Moore, 31 Ind. App. 360, 66 N. E. 483, 67 N. E. 1005; Bohrer v. Dienhart, 19 Ind. App. 489, 49 N. E. 296; Block v. Haseltine, 3 Ind. App. 491, 29 N. E. 937. Three questions are presented: First, as this is not an action by the adjoining owner for damages from the removal of support to his land, does the action lie at the suit of appellant, upon the express covenant? Second, is there such liability on the part of appellant, from having given assent to and contracted for the removal of the earth, so as not to deprive the adjacent premises "of lateral support," that he has an interest to protect that liability as furnishing a consideration for the contract? Third, if so, what is the measure of damages? Cases where the action is by the party who removes the support are naturally of rare occurrence, and probably arise, if at all, out of covenants for protection, or indemnity. [2, 3] The character of the earth, the contiguity of the cemetery, and of burials indi excavation in gravelly soil, were matters open to ordinary observation, as well as the results ordinarily and reasonably to be apprehended, and within the contemplation of the parties in making the contract with its restrictions; but it is urged that the restriction as to preservation of lateral support was not one for the benefit of appellant, except as the element of regard for the resting place of the dead was involved, and that, while he might have a right of action for molestation of the graves of his kindred, that action in the very nature of things would be one for mere sentiment or mental anguish, and would not furnish an element of appreciable damages, by way of money compensation. We are not able to assent to the view that an action for damages would be the sole remedy, nor do we hold that there is such remedy; but it certainly would not be an adequate remedy, for the kindred of the dead are entitled to have their ashes protected, whilst an action for damages in that particular would be so incapable of measurement that it must necessarily be that only nominal damages could be awarded, neither solacing the living or protecting the dead. That it would be the subject of injunctive relief seems reasonable. Farrand v. Marshall, 21 Barb. (N. Y.) 409; Croasdale v. Lanigan, 13 N. Y. Supp. 31; Trowbridge v. True, 52 Conn. 190, 52 Am. Rep. 579; Siddons v. Short, L. R. 2 C. P. Div. 572; In re Girard, 5 Clark (Pa.) 73. The sepulture of the dead, and the monuments thereof, and the fences or other structures in cemeteries, are protected by the criminal statutes. Burns 1908, §§ 2690, 2691. But they do not present other than public rights. They do not present the question of private rights, for, while there cannot be said to be property in the bodies of the dead in the general sense of property, they are the subject of rights which the courts ought to and will respect by proper actions. Burney v. Children's Hospital, 169 Mass. 57, 47 N. E. 401, 38 L. R. A. 413, 61 Am. St. Rep. 273; Weld v. Walker, 130 Mass. 422, 39 Am. Rep. 465; Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667, and note; Boyce v. Kalbaugh, 47 Md. 334, 28 Am. Rep. 464; Davidson v. Reed, 111 Ill. 167, 53 Am. Rep. 613; Beatty v. Kurtz, 2 Pet. 566, 7 L. Ed. 521. [4, 5] Whatever may be the effect of the decision in Western Union Co. v. Ferguson, 157 Ind. 64, 60 N. E. 674, 1080, 54 L. R. A. 846, upon the question of damages for personal anguish, as held in Renihan v. Wright, 125 Ind. 536, 25 N. E. 822, 9 L. R. A. 514. 21 Am. St. Rep. 249, and Reese v. Western Union Co., 123 Ind. 294, 24 N. E. 163, 7 L R. A. 583, as applied to that question alone, the question here is one of protection of a right, and an interest in the dead against desecration of the graves. While it may be, appellant, from the mere fact that he granted appellee the right to excavate the gravel, might not be liable because it was not done by himself, and he could not authorize another to commit a trespass, but by an independent person as grantee of the right, or purchaser of the gravel, yet appellant apparently acquiesced in the line of stakes that was set in cross-sectioning the land as the line to which appellee might excavate. Under the evidence in this case, if appellee had stopped the excavation of such line, the earth would still have slumped from the cemetery, anywhere from 7 to 15 feet, and it is a fair deduction that, in authorizing the cutting to such line, appellant was a joint tort-feasor and liable with appellee as to the result which might ensue to the cemetery property, from authorizing cutting to that point; hence appellant had a direct and pecuniary interest to protect himself from liability to that extent at least, if such line could be said under the evidence, as appellee insists it to have been, an agreed line, and, if not an agreed line, then the right to protect himself wholly against the removal of the lateral support by reason of his own responsibility. City of Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119; City of Evansville v. Shenhenn, 151 Ind. 42, 47 N. E. 634, 51 N. E. 88, 41 L. R. A. 728, 68 Am. St. Rep. 218; Sessengut v. Posey, 67 Ind. 408. covery in appellant, but in the adjoining landowners, and the measure of damages the diminution in the value of the adjoining land. [6] Appellee concedes that there would be a right of action in the adjoining landowner against both appellant and appellee, and we think appellee is right in that concession, and that it furnishes a consideration for and basis for the contract. The contract provides that the natural lateral support shall not be molested, and if, as here, it has been, the law implies a liability to provide support, or pay for the cost of it, or pay the damages, and, so far as appellee is concerned, the question is whether appellant can now enforce the obligation, and the cost of the support. Except for the contract, doubtless only the adjoining owner could sue; but, as we have seen, appellant was entitled to protect himself against liability by contract, and did so. If the line fixed upon as the one to which the excavation might go was such that by not excavating beyond it there would have been no caving from the adjoining land, possibly there would be no liability on the part of appellant under the rule in Bohrer v. Dienhart, supra, Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312, and Williams v. Kenney, 14 Barb. (N. Y.) 629. But where one orders, or assents to, or directs a work to be executed, from which in the natural course of things injurious consequences to his The provision of the contract as to first neighbor must be expected, as here, by diexhausting the gravel from the north pit recting a cutting so close to a line, and so must be taken in connection with the quali- deep, that caving must result, unless means fying phrase so as not "to deprive it (the are adopted to prevent it, he is bound to see property on the east) of lateral support." that that is done which will prevent the Under these conditions, there was a consid- mischief, and cannot relieve himself of his eration for the covenant as being one of responsibility by employing some one else to protection to the cemetery and its fence on do the work, or whether it is done by an inthe one hand, and of protection of himself dependent person, or licensee. Responsibilfrom liability on the other, either of which ity attaches to him by fixing the line. There furnished a sufficient consideration for the is an obvious difference between committing agreement. The result in this case is a seri- work to one to be done from which if propous inroad upon the cemetery lot at the time erly done no injury can arise, and turning the action was begun, increasing in serious- over to him work which in its doing must ness as the elements and natural forces con- be injurious, even though properly done. tinue to disintegrate the soil and bank and City of Anderson v. Fleming, supra; Cabot precipitate it by the force of gravity to the v. Kingman, 166 Mass. 403, 44 N. E. 344, 33 bottom of the pit. It was both appellant's L. R. A. 45; Bower v. Peate, L. R. 1 Q. B. and appellee's duty to use every reasonable Div. 321; Kistler v. Thompson, 158 Pa. 139, effort to prevent or arrest the caving in of 27 Atl. 874; Memer v. Lussem, 65 Ill. 484; the bank, and the fact that the full injury Little Schuylkill v. Tamaqua, 1 Walk. (Pa.) has not been accomplished is no answer to 468; Harrison v. Kiser, 79 Ga. 588, 4 S. E. the claim of appellant that appellee shall 320; Watson Lodge v. Drake (Ky.) 29 S. W. take the proper steps to arrest the injury, or recompense him for doing so, to the extent at least that his contract protects him, if the cause is otherwise sustainable. It is also urged that as the contract does not stipulate for damages, or for the construction of a supporting wall or embankment, and specific performance could therefore not be decreed, that there can be no recovery, and that the contract is a nudum pactum, or, if there could be, it would not be a right of re 632. A more serious question arises over the proposition as to whether this action is prematurely brought, and the question of damages. The weight of authority, and the rule in this state seems to be, that the measure of damages is the diminution of the value of the land from which the support has been removed. Schmoe v. Cotton, supra; Moellering v. Evans, supra; 1 Cyc. 785. The writer is not able to concur in the rule as stated, other than as a general state- | not accrued to him, unless a retaining wall ment, and believes that a modified rule not is necessary in order that he may construct inconsistent with it, and more in consonance and maintain a fence. He does show a right with the established doctrine that the right of action for the destruction of the necesof support is an absolute right, so far as sary support for a fence, by a wall if necthe soil in its natural condition is concerned, essary, and for destruction of the fence itand that being true is a continuing right, self, but he has not pleaded damages as to that the measure of damages is the cost of either, but it is shown by the evidence that restoring support, where the cost is less the fence is destroyed, and that a fence canthan the diminution in value of the land, in not be constructed or maintained for a disorder that the cost may be kept at the mini- tance of 100 feet along the line, without a mum, upon the theory that the right of use wall or other expense. If it cannot be, it of one's own property as he sees fit, so long must be clear that the damages which have as he does not injure another, being also an accrued are to both the adjoining property, absolute right, he ought only be called upon and to him, and it appears, without contrato respond in damages in the smallest diction, that the appellee excavated three amount which will adequately protect his feet beyond the line of stakes, and, as to neighbor. Hartshorn v. Chaddock, 135 N. Y. that cutting, it was more than a nominal 116, 31 N. E. 997, 17 L. R. A. 426; Seely v. trespass, involving more than nominal damAlden, 61 Pa. 302, 100 Am. Dec. 642; Lentz ages. It would necessarily push the cutting v. Carnegie, 145 Pa. 612, 23 Atl. 219, 27 Am. just that much farther east, and increase the St. Rep. 717; Stevenson v. Ebervale Co., damage to the adjoining land, and possibly 201 Pa. 112, 50 Atl. 818, 88 Am. St. Rep. his liability, and there is some evidence of 805; Sabine, etc., Co. v. Joachimi, 58 Tex. damage to his land beyond nominal damages. 456; Slavin v. State, 152 N. Y. 45, 46 N. E. 321; Cavanagh v. Durgin, 156 Mass. 466, 31 | N. E. 643; Ziebarth v. Nye, 42 Minn. 541, 44 N. W. 1027; Larsen v. Oregon, etc., Co., 19 Or. 240, 23 Pac. 974; Vermilya v. Chicago, etc., Co., 66 Iowa, 606, 24 N. W. 234, 55 Am. St. Rep. 279; Ft. Scott Co. v. Tubbs, 47 Kan. 630, 28 Pac. 612; Galveston, etc., Co. v. Ware, 67 Tex. 635, 4 S. W. 13; Walters v. Chamberlin, 65 Mich. 333, 32 N. W. 440; Barrick v. Shifferdecker, 123 N. Y. 52, 25 N. E. 365; Silver Creek Co. v. Mangum, 64 Miss. 682, 2 South. 11; Weir v. Plymouth, 148 Pa. 566, 24 Atl. 94; Loker v. Damon, 17 Pick. (Mass.) 284; Marvin v. Pardee, 64 Barb. (N. Y.) 353; Richardson v. Webster City, 111 Iowa, 427, 82 N. W. 920; Thompson v. Milwaukee Co., 27 Wis. 93; Stimmel v. Brown, 7 Houst. (Del.) 219, 30 Atl. 996. This rule in no wise conflicts with the reason of the general rule that the act may be of such character as to affect the adjoining land very slightly, while restoration might be very costly, but is still within the general rule. In City v. Fox, supra, this court held that evidence was properly admitted as to the cost of constructing a retaining wall along a lot line, but that it was for the jury to say whether such wall was necessary. [7] The adjoining landowner, perhaps a cemetery association, as the complaint alleges it to be a public burying ground, is not a party to the action, and whether it or the landowner may claim a retaining wall, or diminution of the value of the land, we cannot know. Appellant has not built a wall or other support to the land, and may never be called upon to respond in damages, or to build such a wall, and, while there has been a breach of the contract shown, a right of action for damages for a retaining wall has [8] Appellant, however, is not estopped as against appellee by receiving the money for the gravel removed, even beyond the stakes, for one cannot be estopped by reason of receiving that which belongs to him, where he is entitled to it without estoppel or ratification; besides, it does not appear that, in the computation of the gravel taken, any account was taken beyond the line of stakes, or that appellant received anything for gravel taken beyond the line of stakes, if it was so taken or paid for. Smith v. Kidd, 68 N. Y. 130, 23 Am. Rep. 157; Elliott v. Sackett, 108 U. S. 132, 2 Sup. Ct. 375, 27 L. Ed. 678; Drury v. Hayden, 111 U. S. 223, 4 Sup. Ct. 405, 28 L. Ed. 408; Bruce v. Bruce, 95 Ala. 563, 11 South. 197. In view of the state of the record and the facts disclosed by it, as herein shown, we think justice requires that a new trial be granted, and the judgment is reversed, with instructions to the court below to grant appellant a new trial, and for further proceedings not inconsistent with this opinion. WABASH R. CO. v. JACKSON et al. (No. 21,727.) (Supreme Court of Indiana. Nov. 22, 1911.) APPEAL AND ERROR (§ 832*)—RehearingCONTENTIONS OTHER THAN MADE ON HEAR ING. Where, in a proceeding against a railroad company to compel the construction of a bridge or culvert, no offer was made to construct a sufficient bridge or culvert, but defendant dethere was no motion to strike out the recomnied its obligation to construct any bridge, and mendation of the railroad commissioners as to the character of the bridge to be built or to modify a judgment requiring the construction structure, defendant was not entitled, after afa finding as to the character and firmance, to a modification of the judgment so based on MYERS, J. Appellant seeks a rehearing in this case, or in the alternative a modification of the judgment so that it may be left to appellant to construct such bridge or culvert as it sees fit, provided it be sufficient, on the ground that it will be presumed that it will construct a sufficient bridge, upon the theory that the commissioners of drainage and the court had no power or authority to define the kind and dimensions .of the bridge to be placed over the ditch. There was no offer, as is now made, to construct a sufficient bridge or culvert; but appellant stood upon the proposition that it was not required to construct any bridge or culvert. There was no motion to strike out the recommendation of the commisssioners as to the bridge to be built by appellant; but appellant formed an issue, and tried the question of the required capacity of the bridge, and the finding was against it upon the question now urged of there being no necessity for so large a structure. There was no motion to modify the judgment, though in face of the finding as to the necessary size of the bridge the finding does not warrant modification. Appellant insisted and sought to show that a bridge of much less dimensions and cost would be sufficient, and the court did reduce the size and estimated cost of the bridge and found that a bridge of certain dimensions would be sufficient, which was necessarily a finding that a lesser construction would be insufficient. We find no reason to modify our former holding as the record comes to us, and the petition for a rehearing is overruled. MONKS, J. One Rogers brought an action against appellant and others in the court below and recovered judgments against them. Appellant appeals from the judgment of Rogers against him; but he has failed to make Rogers, who recovered judgment against him in the court below, a party appellee. The assignment of error is appellant's complaint in this court, and the only parties adverse to appellant in the judgment over whom jurisdiction is acquired are those named therein as appellees. If the party in whose favor the judgment is rendered is not made an appellee in this court, the case cannot be determined upon its merits, because the court has no power to disturb the judgment without disturbing it as to all those in whose favor it was rendered, and the court has no power to disturb ít as to those who are not parties to the appeal. Lauster v. Meyers, 170 Ind. 548, 84 N. E. 1087, and cases cited; Ewbank's Manual, § 149. As Rogers, in whose favor the judgment appealed from was rendered, has not been made a party appellee in the assignment of errors, the case is not, under the rule, in a condition to be determined on its merits for the reason that the 'court does not have jurisdiction of said Rogers, the judgment plaintiff. The appeal is therefore dismissed. CITY OF HUNTINGTON v. MITTEN. (Supreme Court of Indiana. Nov. 22, 1911.) 1. APPEAL AND ERROR (§ 1078*)-REVIEW— WAIVER OF ERROR IN OVERRULING DemurRER-BRIEFS. Error in overruling a demurrer to the complaint was waived, where defendant on appeal failed to state in its brief any proposition challenging the sufficiency of the complaint, as required by Supreme Court Rule 22 (55 N. E. v). [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4258; Dec. Dig. § 1078.*] 2. APPEAL AND ERROR (§ 265*)-CONCLUSIONS OF LAW-REVIEW - NECESSITY OF EXCEPTIONS. Error in a conclusion of law on the facts found cannot be reviewed, in the absence of an exception taken to such conclusion when filed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1536; Dec. Dig. § 265.*] 3. APPEAL AND ERROR (§ 1078*)-REVIEW-[ WAIVER OF ERROR IN SUSTAINING DEMURRER-BRIEFS. Error in sustaining a demurrer to a portion of defendant's answer is waived by defendant's failure to present any reason or authority in support of its position in its brief. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig § 4258; Dec. Dig. § 1078.*] [4] The appellant finally has assigned as error the action of the court in overruling its motion for a new trial. The question is not presented in appellant's brief, and consequently cannot be considered. Appellee filed a motion to dismiss the appeal; but, in view of the conclusion reached 4. APPEAL AND ERROR (§ 1078*)-REVIEW-by the court, it is not necessary to consider WAIVER OF ERROR IN REFUSING NEW the motion. TRIAL-BRIEFS. There is no reversible error in the record. Judgment affirmed. Appeal from Circuit Court, Huntington NEW YORK, C. & ST. L. RY. CO. v. ROPER County; S. E. Cook, Judge. Action by Lewis C. Mitten against the City of Huntington. Judgment for plaintiff, and defendant appeals. Affirmed. Transferred from Appellate Court under Acts 1901, c. 259; Burns' Ann. St. 1908, § 1405. et al. (No. 21,884.) (Supreme Court of Indiana. Nov. 24, 1911.) 1. RAILROADS (§ 478*)-FIRES-NEGLIGENCE— PLEADING. A complaint for the destruction of plaintiff's house by a fire alleged to have been set out by defendant railroad company, charging that sparks from defendant's engine set fire to Emmett O. King and Cline & Cline, for combustible material which defendant had negappellant. Lesh & Lesh, for appellee. ligently permitted to remain on its, right of way, and that defendant negligently permitted the fire to escape therefrom, pass over plainMORRIS, J. Appellee sued appellant for tiff's land to his dwelling house, etc., sufficientbreach of a building contract. From a judg-ly alleged negligence to repel a demurrer. ment for appellee this appeal is prosecuted. There was a special finding of facts and conclusions of law thereon. [1] Appellant has waived its right to a consideration of the complaint in this court, by its failure, in its brief, to state any proposition or point challenging the sufficiency of the complaint. Rule 22 (55 N. E. v), of this court. [2] Appellant earnestly contends that the lower court erred in its conclusions of law on the facts found, and has challenged their correctness by the proper assignment of error here; but appellee contends that this court cannot consider this alleged error for the reason that appellant did not, in the circuit court, except to any conclusion of law stated. The record does not show that ap⚫ pellant reserved any exception to any conclusion of law. This court does not consider alleged errors in such cases unless the aggrieved party shall have reserved an exception when the finding and conclusions were filed. Ewbank's Manual, § 24. [3] The lower court sustained appellee's demurrer to the second paragraph of appellant's answer, and this ruling is assigned as error. Appellant has waived its right to a consideration of this question by its failure, in its brief, to present any reason or authority in support of its assignment of erEwbank's Manual, § 21. ror. Cent. Dig. §§ 1698-1705; Dec. Dig. § 478.*] [Ed. Note. For other cases, see Railroads, 2. APPEAL AND ERROR (§ 1068*)-CURED ERROR-VERDICT. Where a special verdict found that the fire which destroyed plaintiff's house was caused by sparks from defendant's engine, and that the fire originated on defendant's right of way, any error in refusing instructions that plaintiff could not recover unless the evidence established that defendant set fire to combustible material on its right of way was cured. Error, Dec. Dig. § 1068.*] [Ed. Note.-For other cases, see Appeal and 3. RAILROADS (§ 453*)-FIRES-KNOWLEDGE OF RAILROAD COMPANY. Where a fire by which plaintiff's house was burned originated on defendant's railroad it was not necessary for plaintiff to show that right of way by sparks from its locomotive, defendant had knowledge or notice of the existence of the fire, in order to charge defendant. with liability. Cent. Dig. 88 1657-1660; Dec. Dig. § 453.*] [Ed. Note. For other cases, see Railroads, 4. TRIAL (§ 260*) - INSTRUCTIONS REQUEST TO CHARGE-INSTRUCTIONS GIVEN. An instruction that, if a railroad used a reasonable amount of active vigilance in keeping its right of way free from combustible matter, it discharged its duty, that the law did not require it to keep its right of way absolutely free from leaves, grass, or other combustible material, and that the company was only bound to exercise the care of a reasonably prudent man in preventing fires on his own premises, and in preventing fires from igniting on his own premises and escaping to the land of others, and that the railroad company was not bound to guard against that which might not be reasonably anticipated to occur, covered a request to charge that if defendant's right of way, at the place where the fire originated, was reasonably clean and free from combustible material, it was not negligent. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 651-659; Dec. Dig. § 260.*] |