Indiana Limestone Co. v. McVey , 94 Ind. App. 699 ( 1932 )

Action by appellees against appellant for damages alleged to have been caused by appellant's alleged wrongful pollution of a stream that flows through appellees' real estate. The trial by jury resulted in verdict and judgment in favor of plaintiffs. Defendant's motion for a new trial being overruled, it appeals to this court and assigns as its only error the overruling of said motion.

The facts as disclosed by the evidence are in substance as follows: Appellees are now and have been for a number of years the owners of certain real estate; that a small creek or stream flows through said real estate; appellants own and operate a stone quarry located up the stream from appellees' real estate a distance of from one to one and one-half miles; that in the operation of its quarry, appellant caused great quantities of debris and yellow clay to be washed into the stream, thereby polluting the water of the stream to such an extent that it was unfit to be used by appellees. The pollution of the stream continued from June, 1926, up to the date of the filing of this action. The evidence further tended to show that the rental value of appellees' property with the stream unpolluted is $35 per month, if polluted only $20.

Appellant has assigned as its causes for a new trial: (1) Excessive damages; (2) error in the amount of recovery in that it is too large; (3) insufficiency of evidence; (4) the verdict of the jury is contrary to law; and (5) error in the giving of certain instructions.

We have read the evidence and find that the evidence favorable to appellees is sufficient to sustain the verdict of the jury. The damages assessed are in conformity with the proof as made by appellee and are not excessive. It would serve no good purpose to set out herein the instructions of which complaint is made, but suffice it to say that the several instructions complained of might be subject to criticism, nevertheless each one of them states the law correctly and no reversible error can be predicated on the giving of any one of said instructions. It appears to this court that the cause was fairly tried and a correct result was reached.

Judgment affirmed.