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55 Ind. 425

McOsker v. Burrell

Indiana Supreme Court

Decided November 15, 1876

Indiana Supreme Court · decided 1876-11-15

<p>Highway.—Supervisor.—Watercourse.—Remedy.—Where, in the exercise of an honest, though an erroneous, judgment that it is necessary for the repair of a highway in his road district, a supervisor so constructs a dam that the flow of an ancient watercourse is thereby diverted from its original channel, in such manner as to overflow and damage the land of a neighboring proprietor, the remedy of the latter is, by an application for an assessment of his damages, under section 16 of the act of March 5th, 1859, in relation to supervisors, (1 R. S. 1876, p. 855) and not by an action against such supervisor, personally.</p> <p>Same.—Where, in such case, the lands of an adjoining proprietor are so injured, not because of the negligence of a supervisor in constructing such dam, but because of the failure of his successor to repair it, the former is not liable.</p> <p>Same.— When Supervisor is Liable.—Burden of Proof.—If in making such repairs a supervisor acts in bad faith, negligently or corruptly, he is liable, personally, to any such owner sustaining damages thereby; but the burden of proof is upon the latter to show such bad faith, negligence, or corrupt motive.</p> <p>Same.—Assessment of Damages.—Tender.—Constitutional Law.—The entering upon or taking of the property of another by a supervisor, as contemplated by such section 16 of the act in relation to supervisors, is a taking by the State, within the meaning of section 21, article 1, of the Constitution of this State, for which damages need not be first assessed and tendered.</p> <p>New Tbiae—Causes.—Time Given to File.— Waiver.—Practice.—Where, at the term at which a finding or verdict is rendered, an oral motion for a new trial is made, but, at the request of the party making such motion and without objection by the opposite party, time is given by the court, until the next term, to file written reasons in support of such motion, it is too late for the opposite party, at such subsequent term, to then object to the filing of such reasons.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1876-11-15

How this case has been cited

Cited by 6 later decisions — most recently October 1919

6 state decisions

2018761880189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On petition por a rehearing.

Perkins, C. J.

¶2A petition for a rehearing is filed in this case. The rehearing is asked on two grounds:

¶31st. The written reasons for a new trial were not filed at the term at which the verdict was rendered; and,

¶42d. The defendant was not supervisor, at the time he committed the act complained of.

¶5The record shows that the verdict was returned at the April term; it states, that, at that term, a motion for a new trial was made, and leave given by the court to file the written motion and reasons at the next, the September, term. No objection or exception appears to have been taken to this action of the court at that term. At the September term, pursuant to said leave, the written motion and reasons were filed, over the objection of the appellant.

¶6The statute requires the motion for a new trial, and the reasons therefor, to be filed at the term the verdict or *430finding is rendered. Can time be given for this filing, by the court, till the succeeding term, by the consent of both parties, where the motion is orally made at the term at which the verdict or finding is rendered ? It seems to us that it can be. This being so, where the oral motion is made and leave given in open court, and no objection made, at the term of the return of the finding or verdict, we think consent is to be presumed, and that the written motion and reasons may be filed at the next term, within a reasonable time, where no day ft»r filing is fixed by the court in the leave granted, and on or before that-day, where a day is designated in the leave granted. Wilson v. Vance, ante, p. 394. -

¶7The jury answered, specially, that the defendant was supervisor, when the acts complained of were done.

¶8The petition for a rehearing is overruled.

¶9Petition for a rehearing overruled, and the opinion thereon filed, at the May Term, 1877.

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