The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-02-20
TIE COURT RECORD.
Supreme Court, Feb. 10. 1885

No 1907. William Marks VS.. State ex rel.
Dora Vanderkok Tiprecanoe G. G. Affirmed.
Elliott. I'LL Where party desires the testi
mony of a witness not within the jurisdiction of
the court, he must take the deposition of such
Witness and if he fails to do that the failure of
such witness to attend the trial will not
be cause for continuance. e. The fact
that witness was subp9ned indicates
that the witness was supposed to be in
possession of material facts, and diligence not
being used to compel his attendance, there is no
ground for new trial.
No 1870. William F. Meranda VS.. MILFORD
II. Spurgeon. Upton G. c. Affirmed. collars.
G. J.-l.) In determining the sufficiency of
ton for ditch, the Supreme Court will look to
the specific facts therein stated H. The court
of the county in which petitioner resides, and
in which the proceeding is commenced has juris
diction and authority to establish ditch ex-
tending into another county 49,
A drain may be constructed along
and upon drain formerly constructed pursuant
to an order and judgment of the Board of Com
missioners. IA Under the act of 1883, acts
1885, page ia, section 2, amending section 1875
Revised Statutes, 1881, proof of posting notice
of an intended petition need not be by affidavit
All that is necessary is that it shall appear to the
court that notice was given.
No. 1889 The City of Logansport ct al
vs. Dennis Uhl ct al. Cass G. c. Reversed
Niblack, J.-Where two or more owners of mill
privileges upon the same stream shall have
Severally occupied their premises with hydraulic
works, each has the right to make use of the
water in a reasonable manner, having reference
to like right in the other and to the rights of
other riparian proprietors What constitutes
such reasonable use depends upon the
circumstances of each particular case
| (2) An injunction ought not to be granted
whenit would be against good concience or pro-
| ductive of great hardship, oppression injus-
| tice, or of public or private mischief g.. J
| Acquiescence in the wrongful conduct of another
| by which ones rights are invaded. may often
preclude the injured party from obtaining any
| distinctively equitable remedies named to which
he would otherwise be entitled. but to make such
| acquiescence effective it must have been
| voluntary, and with knowledge of the wrongful
acts complained of, and of their probably in
| furious consequences a. Where lapse of time
| is relied on as defense to an action, it must
| generally. under our code, be pleaded as q de-
| Tense, and be based upon some statute limiting
| the action; but in an application for injunc-
| ton it is neither technically nor in any proper
! sense a matter of defense, but it is of
| the essence of the application; and when it
appears upon the face of the complaint that there
| has been unreasonable delay, advantage may be
taken of that infrinity by demurrer. Isl Any
merely personal right reserved by the Constitu-
tion may be waived. as we'll as any other we'll
| recognized right: so the right to have damages
assessed before property taken may be waived
| No 11S9l-L.. N, A. & G. r r. Co. VS.. War
| rem Wright Clinton c. c. Certiorari granted
| and issued.