3. EASEMENTS (§ 61*)-APPURTENANT OR IN | tract of land owned by appellee to a public GROSS-WAY-FINDINGS. highway and to compel the removal of certain obstructions from said way. The complaint was in three paragraphs, each of which was answered by general denial. A finding that a roadway over other land of the grantor is appurtenant to the land conveyed excludes the idea that the way was personal or in gross. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dec. Dig. § 61.*] 4. LICENSES (§ 58*)-REVOCATION-EXECUTED PAROL LICENSE. A parol license being executed and acted on and expense incurred in perfecting an easement over the land of another, in reliance on the license, it cannot be revoked without placing the licensee in statu quo. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 116-120, 121; Dec. Dig. § 58.*] 5. EASEMENTS (§ 61*) - ACTION FOR PROTEC· COMPLAINT—ALLEGATION OF AGREE TION The appellants have assigned as errors the overruling of separate demurrers to each paragraph of the amended complaint, error in each separate conclusion of law and in overruling their motion for a new trial. The cause was tried by the court, and on request a special finding of facts was duly made and conclusions of law stated thereon. The facts so found are in substance as follows: That on the 17th day of August, 1896, Florian Jann was, and for many years prior thereto had been, the owner of a farm of 110 The general allegation of the complaint, in acres in Clark county, Ind., which is paran action for interference with an easement of ticularly described; that said farm does not way, that the parties to a conveyance agreed touch upon any highway and is wholly surthe grantee should have the right to use a described roadway, then definitely located, is suffi- rounded by other lands; that prior to Aucient to withstand demurrer and permit proof gust 20, 1887, said Florian Jann had no of right to use the road, in the absence of mo- way or road to and from said land except tion for more specific allegation of the agree-by going over the lands of other persons; [Ed. Note. For other cases, see Easements, that on said day said Jann purchased from Cent. Dig. §§ 102, 130-144, 148; Dec. Dig. Alfred Coble a strip of ground adjoining said 61.*] ment. 6. APPEAL AND ERROR (§ 1040*)-HARMLESS ERROR-RULINGS ON PLEADINGS. Any error in overruling a demurrer to a paragraph of the complaint claiming a right of way by prescription was harmless; the relief granted not being based on prescription. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*] 7. APPEAL AND ERROR (§ 1039*)-HARMLESS ERROR-PLEADING-EASEMENTS. One paragraph of the complaint and the findings of the facts, in an action for interference with an easement of way, correctly locating the way, this is enough to sustain the judgment granting relief; and error in description of the way in other paragraphs of the complaint was harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.*] 8. APPEAL AND ERROR (§ 889*)-AMENDMENTS DEEMED MADE-DEFECTS IN PLEADINGS. Mere formal defects in pleadings that might have been corrected at the trial, if the error had been suggested, will on appeal be deemed to have been corrected by proper amendment. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. § 889.*] Appeal from Circuit Court, Clark County; Harry C. Montgomery, Judge. Suit by the Standard Cement Company against William T. Jann and others. Judgment for plaintiff, and defendants appeal. Affirmed. J. K. Marsh, of Jeffersonville, and G. H. D. Gibson, of Charlestown, for appellants. E. C. Hughes, of Charlestown, for appellee. FELT, J. This is a suit by appellee against appellants to enjoin the latter from obstructing an easement or roadway from a certain farm, which is particularly described and is 42 rods wide and 954/10 rods long, extending from the southeast portion of said farm in a northeasterly direction to a highway as the Madison road, leading from Charlestown, Ind., to New Market, Ind.; that thereafter said Jann continuously used a roadway over said strip which had already been used prior to the purchase thereof by him; that said Jann purchased said strip or tract of land in order to obtain an outlet from said farm of 110 acres and continuously thereafter used a strip 30 feet in width over the northwest line of the 22 acres so purchased as aforesaid as a roadway to and from said farm until he sold the same and moved therefrom; that said roadway was attached to and made appurtenant to said farm as an outlet to the public highway, there being no other outlet to any public highway; that on the 17th day of August, 1896, said Florian Jann and Catherine E., his wife, by warranty deed sold and conveyed said 110 acres of real estate to the plaintiff for the sum of $5,500; that said 22 acres was not included in said deed and the only outlet the plaintiff has from its 110 acres, so purchased as aforesaid, to a public highway, without going over the land of other parties, is over and upon said 22-acre strip of land; that said Florian Jann continued to own said 21⁄2 acres to the time of his death, about the year 1905, since which time said real estate has been owned by defendants; that defendants derive their title to said 22 acres as devisees under the will of said Florian Jann; that at the time of the purchase of said 110 acres of real estate, in the presence of the defendants (the appellants), it was agreed between said Florian Jann and the plaintiff (the appellee) that the latter was to have a permanent and absolute right to the use of said roadway over said strip of 22 acres to go to and from said farm; that at the request of said Florian Jann and the defendants said agreement was not included in the deed for said 110 acres; that said parol agreement for said roadway was founded on a valuable consideration, and in pursuance thereof the plaintiff purchased 95 rods of wire to be used in fencing said tract along the line of said roadway and the defendants built said fence; that said roadway so fenced off is 30 feet wide and runs along the northwest line of said 21⁄2acre tract; that in so fencing off said roadway no change was made either in the width or location thereof; that thereafter, and by virtue of said agreement and license, and the consideration paid as aforesaid, the plaintiff immediately took possession of said roadway and at its expense built a culvert across the same and otherwise improved the roadway and used it continuously thereafter in going to and from said farm until prevented from so doing by the acts of the defendants; that on the faith of said agreement, giving the right to use said roadway, the plaintiff built a cement mill on said 110 acres of land and installed thereon boilers, engines, machinery, and everything essential to the manufacture of cement, also built on the premises two iarge warehouses, four dwelling houses, and other buildings, all at the cost of many thousand dollars; that the plaintiff and all persons doing business at said mill continuously and uninterruptedly used said roadway without objection on the part of Florian Jann, or the defendants, from the time the plaintiff purchased said 110-acre tract in 1896 until the same was obstructed by the defendants in 1908; that in 1908 defendants built a fence across said roadway and otherwise obstructed the same and refused to permit the plaintiff to use the way and prevented it from so doing to its damage. On this finding of facts, the court stated its conclusions of law in substance as follows: (1) The plaintiff, the Standard Cement Company, is entitled to a way of necessity 30 feet wide over and along the northwest line of said 22 acres aforesaid, which is the way selected and agreed upon between the plaintiff and said Florian Jann. (2) The plaintiff has an unrevoked and unrevokable right and license to use the roadway in dispute, which is the roadway 30 feet in width over the northwest line of the 21⁄2acre tract described in the foregoing findings. (3) The plaintiff is entitled to have the defendants William T. Jann and John J. Jann enjoined from interfering with the plaintiff's right to use said roadway in dispute and to have them remove all obstructions placed by them in said roadway. (4) The plaintiff is entitled to recover from the defendants the sum of one dollar as dam Exceptions were duly saved to each conclusion of law. The court thereupon rendered judgment, the substance of which is that the plaintiff (appellee) is the owner of a permanent easement for road purposes and a right of way, or roadway, 30 feet in width over and along the northwest line of the following (here follows a particular description of the 22 acres of real estate); that defendants (appellants), and all persons claiming under or through them, be and each of them is hereby enjoined from interfering in any way or manner with plaintiff's free and permanent use of said roadway and from placing any obstructions thereon; that said defendants forthwith remove all fences or other obstructions placed by them on said roadway. It is earnestly insisted that the court erred in its first conclusion of law in this: That the facts found are insufficient to show a way by necessity because the finding does not show that appellee had no other outlet or road from the farm. It is also contended that the second conclusion of law that appellee has a way by "right and license" is inconsistent with the idea of a way by necessity, and vice versa. [1] Before there can be a way established by the rule of necessity, the facts must be such that from them the law raises the presumption that the parties had an agreement that the grantee should have the right of access to the land conveyed him over other lands of the grantor not so conveyed. Where there is a valid express agreement fairly made, the law does not indulge in presumptions, and the rights of the parties will be upheld according to the terms of such agreement. Ritchey v. Welsh, 149 Ind. 214-217, 48 N. E. 1031, 40 L. R. A. 105; Ellis v. Bassett, 128 Ind. 118-120, 27 N. E. 344, 25 Am. St. Rep. 421. [2-4] Conceding, without deciding, that the facts found do not show that appellee has no other outlet from said farm except the roadway in dispute, it does not follow that appellants have been harmed by the court's first conclusion of law, if it be erroneous. The facts found show that appellee's grantor, the father of appellants, from whom they obtain title by will, at the time of the conveyance of the 110 acres, for a valuable consideration, granted to appellee the permanent use of the private way in question; that in pursuance of this agreement appellee furnished wire to fence the way and otherwise improved the same; that in pursuance thereof the way was used continuously without objection from 1896 to 1908 and valuable and permanent improvements were made on the farm. The court also finds that this roadway is appurtenant to the farm so conveyed appellee and thus excludes the idea that the way was personal or in gross. Lucas v. Rhodes, 48 Ind. App. 211, 94 N. E. 914-917. [7] The contention that the description of the private roadway in the second and third paragraph of complaint as being on the "northeast" line instead of the "northwest" line of said 22-acre strip renders the paragraph bad is not sound. In the first paragraph of complaint and in the court's finding of facts the roadway is described as located on the "northwest" line of said tract, and the proof shows this to be the true location. This is sufficient to sustain the judgment, and the error, if any, in the description in the second and third paragraphs of complaint is therefore harmless. page 599, 22 N. E. 669, on page 670 (6 L. R. A. 159), Mitchell, J., said: "While it is well established that a mere naked license to use the land of another is revocable at the pleasure of the licensor, yet where a consideration has been paid, or value parted with on the faith that the license shall be perpetual, it cannot be revoked to the injury of the licensee. Snowden v. Wilas, 19 Ind. 10 [81 Am. Dec. 370]; Robinson v. Thrailkill, 110 Ind. 117 [10 N. E. 647], and cases cited. An executed parol license may become an easement upon the land of another and may impose a servitude on one tenement or estate in favor of another dominant estate. Dark v. Johnston, 55 Pa. 164 [93 Am. Dec. 732]; 6 Am. & Eng. Cyclop. of Law, 142; Washburn, Easements, 24. Where a parol license has been executed and acted upon and expense incurred in perfecting an ease- amendment. Rooker v. Ludowici Celadon ment over the land of another in reliance upon the license, it cannot afterwards be revoked without placing the licensee in statu quo. Woodbury v. Parshley, 7 N. H. 237 [26 Am. Dec. 739]." See, also, Buck v. Foster, 147 Ind. 530-532, 46 N. E. 920, 62 Am. St. Rep. 427; Messick v. Midland Ry. Co., 128 Ind. 81-83, 27 N. E. 419; Simons v. Morehouse, 88 Ind. 391-393. The findings support the second conclusion of law; and, as the relief granted under this finding is identical with that given by the first conclusion of law, the appellants are not harmed by the error, if any, in the first conclusion of law. [5] The first paragraph of the complaint is not insufficient for failing to state the details of the agreement by which it is alleged appellee was to have the right to use the private way in question in going to and from the farm. The paragraph alleges that appellee is the owner of the 110 acres and describes it. It also describes the 212 acres and the private way over the same and alleges its existence and use for many years prior to the purchase of the 110 acres by appellee; that at the time of said purchase it was agreed by the grantor and grantee that the latter should have the right to use said roadway in going to and from said real estate. The general allegation that the parties agreed that appellee should have the right to use said roadway, which was then definitely located, in the absence of any motion to make the same more specific, is sufficient to withstand the demurrer and to permit proof showing such right to use the road. Hall v. Hedrick, 125 Ind. 326, 25 N. E. 350; Mitchell v. Bain, 142 Ind. 604-606, 42 N. E. 230; Steel v. Grigsby, 79 Ind. 184-187. [6] The conclusions and judgment of the court are not based on any right to the way in question acquired by prescription, and the ruling on the demurrer to the second paragraph of complaint, if erroneous, was harmless to appellants. [8] Furthermore it is the rule in this state that mere formal defects in a pleading that might have been corrected at the trial, if the error had been suggested, will on appeal be deemed to have been corrected by proper Co., 100 N. E. 469; Noble v. Davison (Sup.) There is no available error shown by the record, and the judgment is therefore affirmed. (54 Ind. App. 146) BUMP v. SELLERS. (No. 7,960.) (Appellate Court of Indiana, Division No. 2. Oct. 9, 1913.) 1. NEW TRIAL (§ 79*) - GROUNDS - "FINDING"-INSUFFICIENT ÉVIDENCE. Burns' Ann. St. 1908, § 585, subd. 6, authorizes the granting of a new trial on the ground that the verdict or decision is not sustained by sufficient evidence or is contrary to law. Held, that the word "finding," having reference to the findings of the court, was equivalent to the term "decision," and that an objection that the finding of fact was not sustained by the evidence and was contrary thereto, etc., was proper ground for a new trial. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 1652; Dec. Dig. § 79.* For other definitions, see Words and Phrases, vol. 3, p. 2809; vol. 8, p. 7664.] 2. WATERS AND WATER COURSES (§ 79*)-WATERS OF STREAM-DIVERSION. An upper riparian proprietor may not use or divert the waters of a stream in such a way as to destroy or materially diminish the water course, or render it unavailable for the use of a lower riparian proprietor. Water Courses, Cent. Dig. §§ 70, 71; Dec. Dig. [Ed. Note.-For other cases, see Waters and § 79.*] 3. WATERS AND WATER COURSES (§ 38*)— RIPARIAN RIGHTS-DEFINED CHANNEL. Where there is a constant flow of water from springs, it is not essential that the stream have a well-defined channel in order to confer riparian rights. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 30; Dec. Dig. § 38.*1 4. WATERS AND WATER COURSES (§ 85*)-DIVERSION OF FLOW-DRAIN. Where a drain, proposed to be constructed by defendant, in addition to draining a boggy place and underground waters on his land, was to pass under the bed of a natural water course flowing over land belonging to plaintiff, and there was some evidence that the passing of the drain under the bed of the water course would of itself divert the water from the stream to complainant's damage, complainant was entitled to restrain the construction of the drain. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 84-88; Dec. Dig. § 85.*] Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge. Action by Charles B. Sellers against Belle Bump. Judgment for plaintiff, and defendant appeals. Affirmed. Fred. H. Bowers and Milo N. Feightner, both of Huntington, for appellant. John S. Branyan and Wilber E. Branyan, both of Huntington, for appellee. IBACH, J. This suit was brought by appellee to enjoin appellant from constructing a drainage ditch which would divert water from a stream flowing through appellee's land, to his damage. A perpetual injunction was granted as prayed. overruling appelThis motion was others, that the sustained by the (2) From time immemorial a natural water course having a well-defined channel, and natural bed and banks having its source on the lands to the south and east of the lands of plaintiff and defendant, has flowed across plaintiff's lands, thence across the western part of the defendant's lands, thence across the eastern part of plaintiff's lands, and thence again across defendant's lands into the Wabash river. There are several natural springs of water on the defendant's land from which the water naturally issues and flows for the entire year, and, in addition to the other natural supply of water, the water from said springs flows into said natural Plaintiff uses his land for water course. pasturing cattle and raising hogs and uses said water course to supply said animals with water and has arranged his fences and fields for that purpose. The location of said lands, water course, springs, fields, and fences, and certain boggy land and the proposed drain are shown by the plat annexed: It is assigned that the court erred in each of its conclusions of law upon its special finding of facts, and in lant's motion for new trial. upon the grounds, among finding of facts was not evidence and is contrary thereto, that certain specific findings are not sustained by the evidence and are contrary thereto, and that the finding of facts is not full enough and does not state all the facts. [1] Appellee urges that under our statute, section 585, Burns 1908, these are not statutory grounds for new trial, and that therefore no question was presented to the trial court by appellant's motion. The grounds for new trial, as provided by subdivision 6 of section 585, supra, are that "the verdict or decision is not sustained by sufficient evidence, or is contrary to law." However, in the cases of Ellison v. Ganiard, 167 Ind. 471, 79 N. E. 450, and Parkison v. Thompson (1905) 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677, it is held a proper ground for new trial that the finding of the court is not sustained by sufficient evidence, or is contrary to law. The term "finding" is regarded as equivalent to the term "decision," and a motion employing such term challenges the correctness of the court's decision. Therefore appellant's motion by the assignment that the finding of facts was not sustained by the evidence and is contrary thereto properly presented to the lower court and to this court the question whether his decision was sustained by sufficient evidence. Briefly stated, the court found the fol- north end of said land and to extend the lowing facts: (1) Plaintiff owns a certain described tract of land in Huntington county; defendant owns another described tract bordering on the east of the land of the plaintiff. same up over her land and under said natural water course to a point in said boggy land and near said spring, said proposed drain being indicated by a red line on the above plat, to drain said boggy land, and to con [4] But in addition to draining the boggy place and the underground waters the proposed tile drain was to pass under the bed of the natural water course. Appellant claimed that the entire purpose of the drain was to drain the boggy lands and carry away some water from the springs, which appellant did not seem to consider as diverting water from the natural water course whose existence was admitted, but rather as draining off surface water before it reached the natural water course. However, there was some evidence that the passing of the tile drain under the bed of the water course would in itself divert the water from that stream. This evidence alone, laying aside all controverting evidence, as we are required to do, when considering the sufficiency of the evidence to support a decision, would support the court's finding of fact. duct the water from said spring down near | 531, 61 N. E. 754, 87 Am. St. Rep. 268. Where her house into a basin or pond to be used for there is a constant flow of water from ducks and geese and other purposes. There springs, it is not absolutely necessary that is a natural ridge or bank to the north of the channel the channel be well defined. Farnham, said spring and boggy land which prevents Waters & Water Rights, § 501, and cases the water from naturally flowing down over cited. the line of said proposed tile drain. The only natural way to drain and conduct the water from the boggy land and the spring is in said natural water course down over the plaintiff's land. Prior to the issuing of the temporary restraining order in the case, defendant, without the consent of plaintiff, had commenced the construction of said abovedescribed tile drain and would have constructed the same if she had not been restrained from so doing. The land to the south of said spring and under said boggy land and to the north thereof and under said water course and from said spring down below the point where it would be intersected by said proposed tile drain is underlaid with a bed or strata of gravel, which absorbs and stores away part of the water from said springs and from other sources, and in times of dry weather the water from said bed of gravel finds its way into said stream and supplies the same with water. The construction of said proposed tile drain would tap and draw off the water from said bed of gravel and from said natural water course and would divert the water from said stream and prevent it from flowing over the plaintiff's land, except in times of high water. The diversion of said water would produce great injury to plaintiff and to his land. The court stated the following conclusions (Appellate Court of Indiana, Division No. 1. of law: (1) The law is with the plaintiff. (2) The defendant has no right to divert the water in said water course. (3) The defendant ought to be perpetually enjoined from constructing said, proposed drain and from diverting in any other manner the water in said natural water course. [2] The court has found as facts that the proposed drain would tap and drain off the water from the natural water course, and would divert the water from the stream to plaintiff's damage. It seems to us that these facts are sufficient to bring the case within the well-known rule that an upper riparian owner may not use or divert the waters from a stream in such a way as to destroy or materially diminish the water course, or render it unavailable for the use of the lower proprietor. See Farnham, Water Rights, §§ 489, 496-500; Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 385. [3] Counsel for appellee have contended that the waters sought to be drained were underground or percolating waters and not governed by the law relating to natural water courses. It is mainly a question of fact and a matter of proof as to whether the waters drained were a natural water course. Maxwell v. Shirts (1901) 27 Ind. App. 530, Since the evidence supports the finding, and the conclusions of law upon the findings are not incorrect, no reversible error has been shown, and the judgment is affirmed. (54 Ind. App. 242) TOWN OF FRANCISCO v. BOARD OF COM'RS OF GIBSON COUNTY. (No. 8,099.) Oct. 16, 1913.) APPEAL AND ERROR (8 757*)-WAIVER OF Under Supreme Court rule 22 (55 N. E. v), of the record as fully presents the errors relied requiring briefs to contain a concise statement upon, the brief, in an action by the town upon a claim against a county, which did not contain the amended claim or the demurrer thereto presents no question for review, and the appeal must be dismissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] Appeal from Circuit Court, Gibson County; Hardis F. Clements, Judge. Action by the Town of Francisco against the Board of Commissioners of the County of Gibson. From a judgment for defendant, plaintiff appeals. Dismissed. Baltzell & Baltzell, of Princeton, for appellant. S. L. Vandeveer, of Princeton, for appellee. SHEA, J. This was an action upon a claim filed by appellant, the town of Francisco, against appellee, the board of commissioners of Gibson county. Appellee urges that appellant has not complied with rule 22 of this court (55 N. E. v) in the preparation of its brief, therefore the appeal should be dismissed. |