the goods were delivered, if at all, or where they should have been delivered." (Our italics.)

Again, in the case of Wamsley v. Atlas

Alig to do the switching to get the pig iron inside and unload it. * I O. K.'d the cars on these slips on account of the car service because of demurrage. When the cars were brought in and not set, they were Steamship Co., 168 N. Y. 533, 61 N. E. 896, not to be charged demurrage. * The 85 Am. St. Rep. 699, the following language is quoted by appellant in its brief: "Trover will lie when goods have been lost to the owner by the act of the carrier, though there has been no intentional wrong, as when goods are by mistake, or under a forged order, delivered to the wrong person; but it will not lie for the mere omission of the carrier, as where the property has been stolen or lost by his negligence, and so cannot be delivered to the owner." Pittsburgh, etc., R. Co. v. Nash, 43 Ind. 423-427, 428.

Vandalia Railroad Company is the only one that has ever switched or set cars on our switch. I did not see Mr. Corey out there on our switch on the 19th. I did not make a remark to him that this car 50361 was inaccessible."

Exhibit No. 6, referred to by this witness, is an exhibit identified by appellant's witness Corey as a slip or record made by him of cars on Home Stove Company's switch on October 19, 1907, and this slip showed car 50361 on the Home Stove Company's switch on said day. Said slip contained, after said car No. 50361, the letters "Inx," which witness Corey testified was put on said slip by Mr. Power, and indicated that the car was inaccessible.

*

George Alig, Jr., testified, in part, as follows: I received no information concerning that car, other than from Mr. Cash and Mr. Graham, the railroad company's employés. I asked them for records, and got none. I made that investigation with Mr. Power. I saw the slips, marked 'Exhibits Nos. 6 and 7,' and also the cards, marked 'Exhibits Nos. 4 and 8,' there in the Vandalia freight office. On none of these sheets or cards did I see any information concerning the car Erie 50361. They did not show me anything to the effect that the Vandalia Company received the car at Caven Yard, nor that the car service man had found the car on the switch one day and the following day removed. They did not show me a slip of the freight conductor, to the effect that on a certain day he had hauled the car off the switch empty, or gone out empty with the freight train somewhere else.

*

The letters between appellant and appellee and between appellee and the Home Stove Company, introduced in evidence, show that appellant, before the trial, was insisting that it had delivered the iron in question to the consignee. On one occasion the appellant presented the consignee with its said unauthorized receipt for said car, saying, "Here is your receipt for this car."

It is conceded in the prevailing opinion and supported by decisions of courts of other jurisdictions there cited that "a misdelivery by a carrier may be a conversion." (Our italics.) Some of these decisions indicate that there may be a misdelivery as to place as well as to person.

In the case of Bowlin v. Nye, 64 Mass. (10 Cush.) 416, the court said: "A misdelivery of the goods by the defendant would have been a conversion of them, and would therefore have rendered him liable in trover, for it would have been an unlawful act; but there is no proof of misdeed in the present case. It does not appear where or to whom

The facts in this case show that at the express request of the Stove Company appellant had long been in the habit of delivering on its private switch south of and inside its gate cars consigned to it loaded with pig iron, as was the one in question, and there getting the receipt of such company from one of its agents, usually the man in whose office the key to such gate was kept. On this occasion said custom was violated, and the car in question delivered north of and outside of such gate.

There was no notice given the consignee of such delivery. The usual and customary receipt, required by appellant of its agent upon whom it imposed the duty of making such delivery, was not obtained from the consignee, but in lieu thereof such agent, without the authority of the consignee, signed its initials to such receipt, and this receipt, the only written evidence of delivery to the consignee ever required by appellant in such cases, was reported and turned in to appellant according to such usual custom in such cases.

Appellant now contends, and the theory of the prevailing opinion seems to be, that these facts merely show a failure to deliver the property to the consignee, and are not sufficient to even warrant an inference of misdelivery. This claim and theory seem to have been recently adopted by appellant. The evidence discloses that appellant, by its correspondence, words, and conduct before trial, was insisting that it had delivered the iron in question to the consignee.

Let us examine the evidence with a view of determining whether or not there is any evidence warranting the jury in inferring that there was a misdelivery, or whether it was of such character as should have forced the jury, and therefore this court, to conclude that only a failure of delivery is shown.

The appellant's conductor, who last had charge of the car, was the person upon whom the duty of delivery to the consignee was imposed by appellant. Did he deliver the car with the iron in it? He says so, in effect, at least. It is not disputed by him or by his principal that he set the car on the

consignee's private switch. Did he thereby | an inference of misdelivery of the iron in intend a delivery to the consignee? He un- question. doubtedly did, else why did he sign and file with his principal the customary receipt taken from the consignee in such cases, thereby furnishing the only evidence of delivery ever required or obtained in such cases by his principal?

Upon this subject such conductor said: "After delivering the car, it was not convenient in some way or other to get some one to sign for the car after delivering it. I signed this myself, just putting 'H. S. Co.,' and turned it in. That is to show Mr. Graham, when he got that receipt, that the car had been delivered and set. That is the object of this paper. I was accustomed to use that sort of a form, and returned it to the home office upon the delivery of each car to the consignee. It is the customary form for indicating that the car had been delivered to the consignee. * * I did not have any authority to sign the Home Stove Co.'s initials to this paper. It was a part of my duty to deliver a paper of this kind to the consignee and get this signature. The idea of papers of this kind is merely to show, or to put on record, that the car has been delivered. It was for the purpose of getting a receipt of the consignee for the delivery of the car."

This language from the appellant's agent who last had charge of the car, and upon whom was imposed the duty of delivering it, would seem to be sufficient to at least warrant an inference by the jury that such agent regarded and treated the car as delivered when he so placed it on the consignee's private switch and signed the receipt of the consignee therefor.

Under this evidence what element of misdelivery is lacking, either as to person or as to place? What more could have been, or would have been, required to constitute a misdelivery? That the delivery in question was not at the usual or customary place of delivery is not disputed. The placing of said car on said switch outside the consignee's gate, with intent to deliver it, in violation of the established custom and understanding between appellant and the consignee, was a wrong delivery or misdelivery as to place; at least, we think the evidence also shows or tends to show a misdelivery as to the person to whom the delivery should have been made.

Suppose this same conductor and agent of appellant, when he set this car out on the Stove Company's private switch, thereby intending a delivery to such consignee, had innocently taken the receipt of some stranger to such consignee, who had no authority to sign such receipt, and appellant, relying on such receipt, afterwards, on demand, had refused and failed to deliver the iron, would it be heard to say, under such circumstances, that it had not misdelivered said iron? The decisions relied on by appellant would not authorize such a conclusion. Wherein lies the difference and distinction between the assumed case and the case at bar?

ed the duty of delivery, while performing such duty, assumed to act, and did act, without authority, as the agent of the consignee in accepting delivery?

Does the fact that the stranger signed the receipt in the assumed case, while appellant's agent signed it in the case at bar, make a misdelivery in the one case and a mere failure to deliver in the other case? Is the situation of the parties, so far as delivery is concerned, altered by reason of the fact that Did appellant, the conductor's principal, | appellant's agent, upon whom it had imposreceive his said receipt for delivery of said car and treat it as evidence of delivery of such car and contents, and afterwards claim and rely on such delivery? If not, why, in all of its correspondence and communications with shipper and consignee before suit, did it claim that it had delivered the property in question to the consignee, and why did it present such consignee with said receipt, saying, "Here is your receipt for this car?" It seems to us that such evidence ought to be sufficient to warrant an inference that appellant thought and acted as though it had made some kind of a delivery. If there was some kind of a delivery, what kind was it? Was it a delivery at the proper place to the proper consignee?

The consignee says it did not get the iron, and we do not understand that it is now contended that its receipt therefor, admittedly signed without its authority, was sufficient to force the jury to conclude that it did.

To us the conclusion is irresistible that the jury had evidence before it which warranted

The difference between the two cases is that the stranger in the assumed case acts as consignee, and furnishes the forged or unauthorized receipt and evidence of delivery required by appellant of its agent in such cases; while in the case at bar appellant's agent to make the delivery also acts as the consignee's agent in accepting the delivery, and instead of innocently furnishing his principal the consignee's receipt, as in the assumed case, he knowingly and intentionally signs and furnishes such unauthorized receipt and evidence of his delivery. This difference is unfavorable, rather than favorable, to appellant's contention. In the assumed case appellant would have in its favor the fact that the wrongful delivery to the stranger was innocently and unintentionally made, which would be some reason for holding that the wrongful and tortious element necessary in cases of conversion was

lacking; while in the case at bar the delivery | another man's goods from him without cause is robbed of such innocent intent, and instead is tainted with the intentional and wrongful act of the appellant's agent in signing and furnishing to his principal the unauthorized and forged receipt of the consignee as evidence of his delivery.

From this evidence the jury may have properly inferred that the appellant never in fact delivered said car loaded on appellant's private switch, or that, if it did deliver it there loaded, it afterwards took it out in the same condition.

It which showed or tended to show what be- | pellant's record, by which it attempted to came of the property after it went into ap- show the delivery of said car loaded on said pellant's possession. In determining whether private switch of the stove company and the or not the decision reached by the jury on removal of the same car empty. this question had any evidence for its support, we should remember that there was some evidence showing or tending to show the following facts: The car in which this iron was loaded was an open Gondola car. There were 50 tons of iron, made up of bars weighing from 120 to 130 pounds each. The Either inference, in view of the fact that appellant's road and track was the only rail-a demand was afterwards made on appellant road track connecting with the Home Stove for such property, would, under the authoriCompany's private switch. No other rail- ties cited in this and the prevailing opinion, road had access to such car while it was on authorize the verdict in this case. said switch.

The consignee was advised of the shipment of said car before its alleged arrival, and some of its officers and employers were on the lookout for it. Such officers and employés, some of whom passed up and down said switch six to a dozen times a day, claim they never saw said car either north or south of the gate; and one of such employés stated positively that such a car, loaded with the kind of iron in question, was not on said switch on the days claimed by appellant.

The consignee had no way of setting cars for unloading, and when they were set north of its gate it had been its custom to require appellant to set and place such cars at the point desired for unloading. Appellant acquiesced in this custom and placed such cars. The appellant claims to have delivered the car loaded on the 18th of October, and removed it empty on the 21st of the same month. The 20th of the month was Sunday. There was no affirmative evidence of the loss or destruction of the car, and no one claims to have ever seen the car or any of its contents unloaded or removed, except appellant claims to have removed the car empty. There is no evidence that the car in question was ever set or placed for unloading by appellant's agents. The conductor, who claimed to have delivered and placed the car loaded on the consignee's side track north of its gate, admitted that he might not have seen the car delivered or placed on said switch; that he might have been somewhere else and intrusted the delivery of this particular car to the other trainmen.

(53 Ind. App. 259) MAY et al. v. GEORGE. (No. 7,916.) (Appellate Court of Indiana, Division No. 2. April 4, 1913.)

1. JUDGMENT (§ 526*)—VALIDITY-CERTAINTY. Where the complaint charged that defendants constructed and maintained an open sewer on their premises which emptied into a ditch upon plaintiff's property and carried down refuse and waste matter upon plaintiff's property and made it unhealthy and depreciated its value, a judgment on a verdict for plaintiff, which decreed that plaintiff should recover damages and that the nuisance described in her complaint should be abated, is not void for uncertainty; reference to the complaint making it

certain.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 969; Dec. Dig. § 526.*] 2. APPEAL AND ERROR (§ 223*)-OBJECTIONS -TIME.

Where there was no objection to the form of a judgment below by motion to modify or in any other manner, it cannot be objected to on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1338-1342, 1344, 13461350; Dec. Dig. § 223.*]

3. LIMITATION OF ACTIONS (§ 55*)-CONTINUING NUISANCE-NEW CONDITIONS.

Under Burns' Ann. St. 1908, § 291, providing that whatever is injurious to health or indecent or offensive to the senses is a nuisance and the subject of an action, the establishment of an open sewer leading into an old established drain in front of plaintiff's property, in which defendants poured sewage and other offensive matter, gives rise to a continuing cause of action, for which suit may be brought at any time for the injuries created within the last six years, even though the original right of action to prevent the maintenance of the drain had been lost; the cause of action not being based on the maintenance of the drain but to the use to which it was put.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. $ 55.*]

Appeal from Circuit Court, Perry County; William Ridley, Judge.

The same conductor was unable to say that when he removed said car empty, as he claimed, he got it at a point on said side track where it would have been placed for unloading by the consignee, and was unable to say at what point on said side track he got the car, or that he knew that the car was empty, except by his report. There are statements in this conductor's evidence seemingly contradictory. He admits that he signed the initials of the consignee, without authority, to the receipt necessary to be turned into his principal to show the delivery of said car. There was evidence tending to impeach ap*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes.

Action by Maggie George against Mary May and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. A. Land, of Cannelton, for appellants. John W. Ewing, of New Albany, William H. Roose, of Louisville, Ky., and Dennis F. Seacat, of Evansville, for appellee.

[3] Appellants also argue that the court erred in overruling their motion for new trial. Appellants contend that the evidence showed that the cause of action was barred by the statute of limitations. The evidence showed that appellee had owned the house in which she lived for less than three years, that the gutter into which the offensive materials were poured, or a similar gutter, had been in existence for about 50 years. So appellants claim that the cause of action arose more than six years before the bringing of the action; also, that appellants had obtained by prescriptive right, extending over more than 20 years, the right to maintain the gutter.

IBACHI, C. J. This was an action by ap- was made below, by motion to modify, or in pellee against appellants for the maintenance any other manner, and no objection can be of a private nuisance, asking for damages presented on appeal to the rendition of a and an abatement of the nuisance. The com- judgment on the verdict, unless by objection plaint shows that the parties are adjoining in the court below the mistake or defect was property owners in the city of Cannelton, pointed out. Tucker v. Hyatt, 151 Ind. 333, Ind.; that the defendants have constructed 51 N. E. 469, 44 L. R. A. 129; Cockrum v. and maintained an open sewer on their prem- West, 122 Ind. 377, 23 N. E. 140; Kelley v. ises which empties into a ditch on Taylor Houts, 30 Ind. App. 477, 66 N. E. 408. street above plaintiff's premises, and carries refuse and waste matter from the defendants' premises into said ditch; that defendants for two years emptied all their waste and refuse matter, such as slops, soapsuds, garbage, and all waste products of the body, into their open sewer, and such matter flows out into the open ditch on Taylor street above plaintiff's real estate, thence down said street and in front of and against plaintiff's premises, thereby causing cesspools of stagnant water, filth, and noxious matter to be deposited in said open ditch and in front of and against plaintiff's real estate; that said deposits render plaintiff's property unhealthy and undesirable as a dwelling house, and has depreciated both its market and its rental value. It is also averred that defendant picked and tore away brick from the foundation of plaintiff's house, thus weakening the foundation, and that through the openings thus formed defendant emptied wash water under said foundation, thus making the earth under the dwelling damp and muddy and causing the sills, sleepers, floor-sance is of a character so permanent that it ing, and walls to mildew, rot, and decay.

[1] Trial by jury resulted in a verdict for plaintiff, assessing her damages at $10, and finding that the nuisance alleged in the complaint should abate. The court rendered judgment on the verdict, and the judgment entry is in the following words: "It is therefore considered and adjudged by the court that the plaintiff recover of and from the defendants the sum of $10, and that the nuisance set out and described in plaintiff's complaint be abated, and that she have judgment against defendants for her costs, laid out and expended."

It is argued that this judgment is void for uncertainty. The rule is that, "if the entry of a judgment be so obscure as not to express the final determination of the court with sufficient accuracy, reference may, and indeed ought to, be had to the pleadings and the entire record when construing the judgment." Fleenor v. Driskill, 97 Ind. 27, 33, and authorities cited; Freeman, Judgments, § 45; 11 Encyc. Pleading & Practice, 934, 956; Elliott, General Practice, § 1019; Thain v. Rudisill, 126 Ind. 272, 26 N. E. 46. The present judgment orders the abatement of the nuisance described and set out in plaintiff's complaint, and, under the rule and the authorities above cited, may be made certain by reference to the complaint.

[2] Further, no objection to the judgment

This action was brought under section 291, Burns 1908, which provides that "whatever is injurious to health, or indecent, or of fensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action." The rule is that, if a nui

may be fairly said that the entire damage accrues in the first instance, the statute of limitations begins to run from that time; but, if the nuisance may be said to continue from day to day and create a fresh injury each day, there may still be a right of action for the injuries created within the last six years, though the original right of action has been lost. Peck v. City of Michigan City, 149 Ind. 683, 49 N. E. 800.

The nuisance alleged in the complaint and proved by the evidence was not the maintenance of the gutter, but the use to which the gutter was put. Merely because there was a drain to carry away water in existence for more than 20 years, it does not follow that appellee could not recover for the obnoxious condition of affairs shown by the complaint, and supported by the evidence, all occasioned by the use made of the gutter by appellants within six years immediately preceding the time the action was begun. Such a nuisance was a continuing one and not barred by the statute of limitations. There was no showing that the drain had been used, prior to six years before the bringing of the action, for the purposes mentioned in the complaint, therefore no evidence which would tend to show a prescriptive right to use the drain for such purposes, even if such right could under some circumstances be obtained.

Judgment affirmed.