Deweese v. Husmann ( 1908 )

Mr. Justice Ramsay

delivered the opinion of the court.

Julia Deweese recovered a judgment in the Circuit Court of Mason county in the sum of fifty dollars against Jacob Husmann for damages alleged to have resulted to the premises of Deweese by the action of Husmann in so filling his own lot as to set the water back upon the lot of Deweese. Husmann appealed.

The merits of the controversy are so palpably in favor of the claim as made by Deweese that no extended discussion of the case can be of any avail.

The natural course of the water was from the premises of Deweese upon and across the lot of Husmann, who in improving his lot and in building a sidewalk upon the street line thereof, so raised and elevated his own premises, as to overflow the lot of Deweese and cause the damages sued for.

Husmann insists that, because Deweese made no objection at the time the improvements were made and the filling done that caused the overflow, Deweese is now estopped from recovering any damages resulting from the doing of such work.

We do not so understand the rule. “It is no bar to an action for the recovery of damages, that the plaintiff has made no objection or protest against the creation or continuance of a nuisance.” Amer. & Eng. Encyclopedia Law, Second Ed., Vol. 21, page 723.

The damages recovered were moderate in amount and the judgment was right.

The judgment is affirmed.

Affirmed.