The Indianapolis journal., 1883-06-26
THE COURT RECORD.
Supreme COurt-June 23.
Hon. William E. Niblack. Chief Justice

Supreme Court-June 23.
Hon. William E. Niblack. Chief Justice.
REAL ESTATE BRoKER-CoMMIssIoN
9,S19. Emanuel Fischer vs. william M. Bell.
Warrick c. @.
Franklin, CA contract to procure a pur-
chaser for real estate is valid without being in
writing. real estate broker is entitled to his
commission when he finds purchaser ready,
willing and able to complete the purchase on the
terms given to the broker by the owner. (53
Ind, 294; 40 i'd, 279; 45 i'd, 1881 If the owner
then refuses to sell the property on the terms
offered, or declines doing for so long time
that the proposed purchaser buys other prop
erty, and refuses threafter to buy on the terms
offered, the broker can recover his commission.
Judgment affirmed,
HIGHwAYs-LocATIoN oF-NoTIcE.
9,95s. James S. Mcintyre VS.. Lewis Marine
Black, C.-section Is of the act of 1852 for
the opening of highways is not cor
recty set out on page 531, r. 8. 1876.
SAID section was superseded by the amendment
of 1859, and the act of 1867 purpOrting TO
amend said section 15 of the act of 1852 was in
effectual because it purported to amend a statute
not in existence This act, both in its title and
body, purpOrted to be an amendatory act only,
and could not be effectual as an independent
statute. (46 Ind, 96; SO i'd, 194; 73 i'd, 543.l
In the revision of 1881 the amended section OF
1859 is correctly inserted. (See Sec 5,Ol5) Un-
der this ction it not necessary to set forth
the names of any owners, occupants or agents OF
lands through which the highway would pass,
in the petition or notice or other papers or pro
actual notice. mills En-. DOM, secs. "a, 9s.)
Judgment affirmed.
DEMURRER-PRACTICE-M
s,213. Jacob Soluble VS.. David H. slagel
Shelby @. c.
Elliott. J.-Where the plaintiff does not
demur the answer, and a demurrer to
his reply is overruled he is not in a position to
claim that the demurrer filed TO the reply should
have been carried back and sustained to the an
swer. If the demurrer to the reply is sustained
and he excerpts the rule is otherwise. party
who secures all he asks in the trial court cannot
complain appeal. Where mill property is
conveyed and the height OF the dam adds mate
rally to the value Of the property, the right to
so maintain it is a part of the thing purchased
and if the purchaser is deprived of IL because
his vendor did not possess it, he may, without
surrendering possession, defend against an ac
tion for purchase money as for a partial failure
of consideration. (29 Ind, 96) The right tC
maintain the dam at such height as will fur
nisb sufficient water power is an incorporeal he
reditament which is inclnded in con
veyance of the property, and If title fails
TO it and there is an eviction, there is
breach of the covenants of the deed
(Angell, Watercourses, ed. section 153 A;
Pa. ST. 5OO.) In such case, where the deed i,
silent on thespoint, parOl evidence is admissible
to show at what height the dam was being
maintained when the deed was made, ana thai
the right to so maintain it was what the plaintiff
warranted by his deed. (64 Ind, 1e2; Angel
supra, section las; Wash. r. p, 1888; Mass.
1922 Judgment affirmed.