Spitznogle v. Ward

Biddle, J. Complaint by the appellee, against the appellant, averring that he wrongfully cut a ditch into and upon the land of the appellee, under his fence, and cast a stream of water into his field, upon his growing crop of corn. The case was commenced before a justice of the peace, and came into the circuit court by appeal. Trial by the court; finding for the appellee. Judgment over a motion for a new trial, and exceptions. Appeal, and assignment of errors. [31] The evidence shows that the appellee was the owner of the land as coparcener with another person; that the field alleged to have been injured by the ditch was situated adjoining a public highway; that the appellant was the supervisor of the road district in which the highway was situated; and that the ditch complained of was cut by the appellant, as supervisor, in the regular course of doing work upon the public highway. There is no evidence tending to show that the appellant, in cutting the ditch, acted improperly or in bad faith. In such eases the law provides a remedy for the aggrieved party, by a petition to the township trustee for an assessment of damages occasioned by the injury, and the supervisor is not personally liable. 1 R. S. 1876, p. 858, sec. 16. This question has recently received the full consideration of this court, in the case of McOsker v. Burrell, 55 Ind. 425. We need not, therefore, any further consider the case. The judgment is reversed, at the costs of the appellee, and the cause remanded with instructions to sustain the motion for a new trial, and for further proceedings. Petition for a rehearing overruled.