AND "NATURAL WATER COURSE." Where part of a natural water course was improved by the landowners by confining it in an artificial channel, it did not thereby lose its characteristics as a "natural water course.' [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 30; Dec. Dig. 38. 99 For other definitions, see Words and Phrases, First and Second Series, Natural Water Course.] 4. WATERS AND WATER COURSES 38 CHARACTER AS "NATURAL WATER COURSE." Where there was a marked depression, or surface indication of a channel, and throughout its entire course there was a flowing current of water to the southwest, and the stream was possessed of permanency in that it flowed from time immemorial six to nine months in each year, such channel was a "natural water course," though before part of the stream was improved by confining it to an artificial channel there was no marked depression in the earth's surface in the form of a channel of a stream extending throughout the entire course of the trough or swale. 3. WATERS WATER COURSES 38. -The second paragraph of complaint in subCHARACTER AS NATURAL WATER COURSE- stance alleges: That appellee is the owner CONFINEMENT ΤΟ ARTIFICIAL CHANNEL of a certain tract of real estate in Sullivan county, Ind., which is under a state of cultivation. That appellants own a tract of real estate, which joins appellee's real estate on the south. That the slope of appellee's land is to the south, and from time immemorial the surface water from appellee's lands has been collected into an artificial channel running through appellee's land, the water of which has been discharged onto the land of appellants through a well-defined channel, which continues across a part of appellants' land. The channel is some 3 feet deep, varying in width; at places it is 3 feet wide in the bottom and 6 feet wide at the top, and constitutes appellee's only outlet, and through which the water from his farm has been discharged for more than 30 years, with the full knowledge, consent, and acquiescence of appellants and their grantors, immediate and remote, and under a claim of right on the part of appellee, which claim has been open, notorious, and exclusive, by reason of which appellee has acquired an easement to continue the discharging of the water collected into the channel. That on May 15, 1913, appellants wrongfully and unlawfully constructed a concrete dam across the channel where it enters the land of appellants, with wings extending on either side, some 20 feet in length and about 2 feet high, which obstructs the flow of the water, destroying the use of some 2 or 3 acres of appellee's land lying close to the channel, and that about 5 acres of appellee's corn has been destroyed from backwaters caused by the dam to his damage in the sum of $250. That if the dam was permitted to remain, it would be to appellee's irreparable injury, and that appellants should be ordered to remove it and be forever enjoined from maintaining the same. The first paragraph of complaint, the sufficiency of which is not here questioned, charges appellants with obstructing a matural water course. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 30; Dec. Dig. 38.] 1010(1)-REVIEW 5. APPEAL AND ERROR Where there is some evidence supporting every material point involved under an issue joined on a paragraph of the complaint, there can be no reversal on the ground that the evidence does not sustain the decision of the trial court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. 1010(1).] Appeal from Circuit Court, Clay County; John M. Rawley, Judge. Suit by Tarleton C. Woodward against Robert E. Trout and others. From a decree and judgment for plaintiff, defendants appeal. Affirmed. Clarence A. Royse, George O. Dix, and James A. Cooper, Jr., all of Terre Haute, for appellants. William R. Nesbit, of Sullivan, and Arthur Denny Cutler, of Carlisle, for appellee. [1] Where an easement is used by one whenever he sees proper, without asking permission, and no objection is made thereto, the use is adverse; and an adverse enjoyment and use uninterrupted for 20 years of an easement cannot be afterwards disputed. Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230; Pyott v. State, 170 Ind. 118, 83 N. E. 737; Walley v. Wiley, 56 Ind. App. 171, 104 N. E. 318; Seigmund v. Tyner, 52 Ind. App. 581, 101 N. E. 20. MORAN, P. J. Appellee, in the court be low, obtained a mandatory injunction against appellants, directing them to remove a certain concrete dam and from maintaining the same on their real estate, which adjoined appellee's, which appellee alleged interfered with the flow of a water course which furnished drainage for his real estate. In addition to relief by mandatory injunction, appellee was awarded judgment in damages in the sum of $10. A reversal of the decree and judgment is sought on the ground that the court erred in overruling appellant's "Its averments show that said drains were demurrer to appellee's second paragraph of constructed and in use by and with the consent complaint, in stating its conclusions of law of all owners of said lands long before appellant purchased his real estate; that he purchasupon the facts specially found, and in over-ed with full knowledge of the same and of apruling appellants' motion for a new trial. pellee's easement, or right to flow water across In the latter case, it was said in considering the sufficiency of an answer that pleaded a right by prescription: his said lands. Under the authorities the answer states a good defense to appellant's complaint." In Mitchell v. Bain, supra, the following language is made use of: "Such enjoyment without explanation how it began is presumed to have been in pursuance of a grant. The owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract, inconsistent with a claim of right by the other party." Construing the allegations of appellants' second paragraph of complaint in the light of the authorities, it is clear, we think, that it is sufficient to withstand a demurrer for want of facts. The special finding of facts discloses, among other things, that appellee and certain other persons are the owners of lands in Sullivan to the construction of the artificial channel on the tracts of real estate mentioned there was evidence of a flow of water across the lands throughout the entire course where the channel is now located; that the artificial channel was constructed for the purpose of confining the water within narrower bounds than that which it originally occupied; that appellants' tenant from 1903 to 1907 was under obligations by reason of his contract of tenancy to keep that part of the channel on appellants' land cleaned out and free from obstructions; that on May 15, 1913, appellants constructed a concrete dam across the channel just immediately south of the boundary line between the lands of appellants and appellee, which has impeded the flow of water to the injury of appellee's land. If the facts found by the court, of which the foregoing is a brief summary, do not warrant the conclusions of law stated by the court, then appellee was not entitled to relief under either the issue of obstructing an easement or that of a natural water course. In this behalf, appellants earnestly insist that the facts found disclose that the dam erected by them turned from their premises surface water alone, and that the issue joined on the first paragraph of complaint, which involves the obstruction of a natural water found are not sufficient to authorize a con clusion of law that an easement has been ac quired by appellee over appellants' land un der the issue joined on the second paragraplı of complaint. county, which are productive, being improved by drainage, the natural drainage being to the southwest; that before the lands in this neighborhood were improved by drainage and while in their original state, there was a low trough or swale extending in a northeasterly and southwesterly direction for a distance of about two miles; that starting some distance above appellee's real estate, said trough or swale extends across the intervening lands and across the lands of appellee and a small portion of appellants, and into this trough or swale a large body of water gathered dur- course, has not been established; and that ing the rainy seasons of the year and for the conclusion of law reached by the court from 6 to 9 months each year, and from time to this effect is erroneous, and that the facts immemorial the water thus collected moved in a sluggish current to the southwest across the lands between the starting point and its terminus, which terminus was some distance below appellants' land in a gravel pit, where by the process of percolation it disappeared; that on the Woodward land some distance above appellee's land there is a well-defined channel with bed and banks which was cut through the turf by erosion of the water and through which the water has flowed as it has been gathered into the trough or swale in this locality; that there is now and has been for more than 20 years a well-defined channel along the lowest part of the course occupied by the trough on appellee's land, and which was originally the swale heretofore mentioned; that an artificial channel has been maintained for many years on the lands of both appellee and appellants, in which a stream of water with a current has flowed from 6 to 9 months each year; that on the lands immediately east of appellee's land what was an open channel has been constructed into a closed drain consisting of an eight-inch tile, and where the water course crosses the highways, it does so through a 24 and 36 inch sewer, respectively; that in the year of 1897, a tenant in possession of appellee's farm cut a small artificial channel across that part of appellants' land traversed by the water course, into which was collected the water at this point and through which the water from above has flowed; that prior [2] It need only be said in passing that if the water dammed against was surface water, then there could be no recovery under the issues joined as to the first paragraph of complaint. It has been held generally that a natural water course must have a substantial exist ence; that there must be a bed and banks and evidence of a permanent stream of running water, but that it is not essential in order to be thus classed that it flow continuously throughout the year. Walley v. Wiley, 56 Ind. App. 171, 104 N. E. 318; Vandalia R. Co. v. Yeager, 110 N. E. 230; Schlichter v. Phillipy, 67 Ind. 201; Weis v. City of Madison, 75 Ind. 241, 39 Am. Rep. 135; Rice v. City of Evansville, 108 Ind. 7, 9 N. E. 139, 58 Am. Rep. 22. The general rule of law announced as to the elements or characteristics that go to complete or make up a natural water course is subject to some modification when the facts are such as to warrant the same. Farnham on Waters (p. 1562), after referring to the material elements of a water course, says: istence of a stream of water flowing for such "The distinguishing characteristic is the exa length of time that its existence will furnish the advantages usually attendant upon streams of water. The court having attempted to describe this condition as a stream usually flowing in a definite channel, having bed and sides or banks and usually discharging itself into some other stream or body of water. * * These definitions are rather more in the nature of limitations than definitions. The most sat isfactory definition is that a water course is the condition created by a stream of water having a well defined and substantial existence. To constitute a water course the flow of water must possess that unity of character by which the flow on one person's land could be identified with that on his neighbor's land." In Case v. Hoffman, 84 Wis. 438, 54 N. W. 793, 20 L. R. A. 40, 36 Am. St. Rep. 937, it was said upon authority: "If a water course is lost in a swamp or lake, it is still a water course if it emerges there from in a well-defined channel, or if it spreads over a meadow, and it can be identified or traced as the same stream, it is still a water course." water course under consideration, in view of the facts found by the court, must be regarded as a natural water course, and under the authorities, appellee was entitled to the relief granted under the issues joined on the first paragraph of complaint so far as the conclusions of law are concerned. The conclusion reached on the question raised on the exceptions to the conclusions of law makes it unnecessary for us to consider the issues joined under the second paragraph of complaint in this respect. [5] As to the question for consideration embraced within the error predicated upon the overruling of appellants' motion for a new trial, viz. that the decision of the court is contrary to law and not sustained by sufficient evidence, the record discloses that each essential fact necessary to maintain the issue joined on the first paragraph of complaint is And in Mitchell v. Bain, supra, the follow-supported by some evidence, and where ing language is used: "A stream does not cease to be a water course and become mere surface water because at a certain point it spreads over low ground several rods in width and flows for a distance with out a defined channel." In the recent case of Vandalia R. Co. v. Yeager, supra, this court, after a review of authorities, held that under some circumstances a stream may be classed as a natural water course in the absence of a well-defined channel as that term is usually understood, as where the water through a part of its course spreads over considerable portion of land. [3, 4] The finding of facts in the case at bar does not show that originally, and before the real estate in question was improved, there was a marked depression in the earth surface in the form of a channel of a stream extending throughout the entire course of what is termed the trough or swale. At places there was, however, a marked depression or surface indication of a channel, and throughout the entire course of the trough or swale there was a flowing current to the southwest, as it flows at the present time. This, as a moving stream or body of water, was possessed of permanency in that it flowed from time immemorial 6 to 9 months in each year. Except where this course crosses the highways and where converted into a tile drain there is now and has been for many years a well-defined channel, a part of which may be termed an artificial channel and a part of which on the lands some distance above appellee's is still in its original state caused by the erosion of the water itself. As to that part of the channel that has been closed or improved by the landowners, it has not by reason thereof lost its characteristics as a natural water course, as it has been held that the characteristics of a natural water course are not changed by confining it in an artificial channel. Walley v. Wiley, supra. there is some evidence supporting every material point involved under an issue as thus joined, there can be no reversal on the ground that the evidence does not sustain the decision of the court. Poetker v. Tindle, 45 Ind. App. 455, 91 N. E. 45. Therefore we need not consider this assignment of error as to the issue joined on the second paragraph of complaint. Finding no error in the record calling for a reversal of the decree and judgment, the same is affirmed. (63 Ind. App. 309) WAINWRIGHT TRUST CO. v. UNITED STATES FIDELITY & GUARANTY CO. (No. 9579.) (Appellate Court of Indiana, Division No. 1. Dec. 19, 1916.) 1. FRAUDS, STATUTE OF 14—CONTRACTOR'S BOND. Under the statute of frauds (Burns' Ann. in writing; it being for the purpose of chargSt. 1914, § 7462), a contractor's bond must be ing a person upon a special promise to answer for the default of another. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 14; Dec. Dig. 14.] WAIVER 2. FRAUDS, STATUTE OF 131(1) BY PAROL. Waiver by surety of provision in contractor's bond relative to the time within which suit must be brought thereon is not binding unless in writing, since the bond itself is required, by the statute of frauds (Burns' Ann. St. 1914, § 7462), to be in writing. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 283; Dec. Dig. 131(1).] We have reached the conclusion that the 59.] 4. PRINCIPAL AND SURETY 123(1) — CONTRACTOR'S BOND. The provision of a contractor's bond requiring notice of default by principal not later than 30 days after knowledge of such default is a valid condition. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 304-309; Dec. Dig. 123(1).] 5. PRINCIPAL AND SURETY 123(2)-CONTRACTOR'S BOND-NOTICE OF DEfault. The requirement of giving of notice of default in contractor's bond was not complied with when the board of commissioners notified the obligee on May 13th that work should be begun within 10 days in order to complete it by August 1st, to which time they had extended the time limit of the contract, and, immediately upon receipt of such notice, written notice of the contractor's "default" and the order of the board were given to the surety; the alleged notice of default having been given more than 2 months before the expiration of the time limit. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 310; Dec. Dig. m 123 (2).] 6. PRINCIPAL AND SURETY 129(1) DISCHARGE OF SURETY-WAIVER. The acceptance and retention by surety on a contractor's bond of a renewal premium was not a waiver of the surety's right to notice of the contractor's default, where there was no default by the contractor until several months after the payment of the premium. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 366, 369, 3702372; Dec. Dig. 129(1).] Appeal from Circuit Court, Hamilton County; Meade Vestal, Special Judge. "Know all men by these presents, that W. P. Black of Fishers, Indiana (hereinafter called the principal), and the United States Fidelity & Guaranty Company, a corporation created and existing under the laws of the state of Maryland, and whose principal office is located in Baltimore City, Maryland (hereinafter called the surety), are held and firmly bound unto Holleran & Haverstick, Noblesville, Indiana (hereinafter called the obligee), in the full and just sum of five thousand ($5,000.00) dollars, lawful money of the United States, to the payment of which sum, well and truly to be made, the principal binds himself, his heirs, executors and administrators, and the said surety binds itself, its successors and assigns, jointly and severally, firmly by these presents. sealed and delivered this 30th day of SeptemSigned, ber, A. D. 1912. certain written contract with the obligee dated "Whereas, said principal has entered into a July 17, 1912, to furnish labor and material for the completion of a gravel road, known as the Eiler Road, in accordance with contract which is made a part of this bond: "Now, therefore, the condition of the foregoing obligation is such that if the said principal shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of the said contract on the part of the said principal to be performed, then this obligation shall be void; otherwise to remain in full force and effect in law: Provided, however, that this bond is issued subject to the following conditions and provisions: "First. That no liability shall attach to the surety hereunder unless, in the event of any default on the part of the principal in the performance of any of the terms, covenants or conditions of the said contract, the obligee shall promptly, and in any event not later than thirty days after knowledge of such default, deliver to the surety at its office in the city of Baltimore, written notice thereof, with a statement of the principal facts showing such default and the date thereof; nor unless the said Gentry & Campbell, of Noblesville, for ap- obligee shall deliver written notice to the surepellant. Pickens, Moores, Davidson & Pick-ty at its office aforesaid, and the consent of ens, of Indianapolis, for appellee. Action by the Wainwright Trust Company, Receiver, against the United States Fidelity & Guaranty Company. From judgment for defendant, plaintiff appeals. Affirmed. MCNUTT, J. This was an action by appellant, as receiver for the firm of Holleran, Haverstick, Wheeler & Patterson, in the court below, against appellee as surety upon a contractor's bond, the contractor being one Black. The appellee demurred to appellant's complaint, the same being the fourth amended, for want of sufficient facts, which was sustained. This action of the court is the only error assigned. The contract, which is made a part of the complaint by exhibit, required said Black to place the gravel on two public highways of Hamilton county known as the Eiler Road and the Hunter Road, which appellant's firm had contracted with the board of commissioners of said county to construct according to certain plans and specifications. Said Black agreed to place the gravel on said roads on or before the 1st day of January, 1913, and the contract was entered into on the 17th day of July, 1912. The bond, which is also made a part of the complaint by exhibit, reads as follows: the surety thereto obtained, before making to the principal the final payment provided for under the contract herein referred to. "Second. That in case of such default on the part of the principal the surety shall have the right, if it so desire, to assume and complete or procure the completion of said contract; and in case of such default, the surety shall be subrogated and entitled to all rights and properties of the principal arising out of the said contract and otherwise, including all securities and indemnities theretofore received by the obligee and all deferred payment, retained percentages and credits, due to the principal at the time of such default or to become due thereafter by the terms and dates of the contract. liable for a greater sum than the penalty of "Third. That in no event shall the surety be this bond, or subject to any suit, action or other proceeding thereon that is instituted later than the 30th day of July, A. D. 1913. be liable for any damage resulting from, or for "Fourth. That in no event shall the surety the construction or repair of any work damag ed or destroyed by act of God, or the public enemies, or mobs, or riots, or civil commotion, or by employés leaving the work being done under said contract, on account of so-called 'strikes' or labor difficulties. "In testimony whereof, the said principal has hereunto set his hand and seal and the said cuted by its attorney in fact, sealed with its surety has caused these presents to be execorporate seal, the day and year first written." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plaintiff's damage in the sum of $3,757.68; that appellant, on September 14, 1914, demanded of appellee said sum, but that ap pellee refused to pay any part thereof; that said sum, with interest, is long past due and unpaid, and judgment therefor is demanded. Appellant, in its brief, under "Points and Authorities," states only two points, which are as follows: "1. A condition in a bond executed by a surety company, limiting the time within which an action may be brought on such bond, being for the benefit of the company, may be waived." "2. Contracts of surety companies are contracts of indemnity, and as such fall under the rules of construction applicable to contracts of insurance." Appellee does not dispute the correctness of either of said points as abstract legal propositions, but insists that, while a condition in a surety bond, limiting the time within which an action thereon may be brought, may be waived, no waiver of such condition is shown in the complaint for the reason that the requirement that suit be brought within a certain time is shown to be in writing, while the alleged waiver is shown to be in parol, and therefore within the statute of frauds. The complaint alleges, in substance, that yard in excess of said Black's contract, to on March 10, 1915, the appellant was appointed receiver for said firm; that on July 17, 1912, said firm entered into said contract; that in consideration of said contract and as a part thereof said appellee, as surety for the contractor, Black, executed to said firm said bond for the faithful performance of said contract; that said contractor complied with the terms of said contract relating to said Hunter Road and received the consideration therefor, but failed to perform any part of the work on said Eiler Road; that on or before said 1st day of January, 1913, said Black and said firm mutually agreed to and did extend the time for the completion of said work and in consideration of such extension said firm agreed to waive any claim for damages for the work not being completed on or before said 1st day of January, 1913, and that said Black upon his part agreed to pay, and did pay, to appellee the sum of $25 for the extension and security of said bond, of all of which facts said appellee then had knowledge; that after the extension of the time for the completion of said work appellant, said Black and appellee appeared before the board of commissioners of Hamilton county and obtained from it an order extending the time for the [1] The bond in suit was not only in writcompletion of said Eiler Road; that appelleeing, but was for the purpose of charging knowing that said bond contained a provi- appellee upon a special promise to answer sion "that in no event shall the surety be for the default of another, and therefore subject to any suit or other proceeding there- under the statute of frauds had to be in on that is instituted later than July 30, writing. Section 7462, Burns' 1914; Knight 1913," did, on or about November 20, 1913, & Jillson Co. v. Castle, 172 Ind. 97, 87 N. E. accept from said Black an additional preml- 976, 27 L. R. A. (N. S.) 573. um of $25 for the continuation and extension of the terms of said bond, and that appellee has ever since retained said sum; that on November 21, 1913, said firm, believing said bond was still in force and relying upon its security, together with said Black and one Hines, who was then and there the duly authorized local agent of appellee, appeared before said board, and that said Hines, as spokesman for said parties, asked for and was granted an order by said board extending the time for the completion of said Eiler Road to August 1, 1914; that on May 13, 1914, said board notified said firm that work should begin on said road within 10 days thereafter, in order to complete it by the time allotted; that immediately upon receipt of notice of said demand, and within 30 days after knowledge of default by said Black, or on or about May 13, 1914, written notice of such default and the order of said board was given to appellee, at its office in Baltimore, Md.; that said Black neglected and wholly failed to perform any part of his work on said Eiler Road; that appellee failed and refused to perform any of said work; that by reason thereof said firm, by its legal representative, was compelled to, and did, perform said work at a cost of $1.05 per cubic yard, which was 68 cents per cubic In the case of Wellinger v. Crawford, 48 Ind. App. 173, 89 N. E. 892, 93 N. E. 1051, it is held that because contracts for a commission for a sale of real estate must be in writing (section 7463, Burns' 1914), such contracts cannot be varied or waived by parol. In Burgett v. Loeb, 43 Ind. App. 657, 660, 88 N. E. 346, it is held that since a lease for more than 3 years is required to be in writing (section 7462, Burns' 1914), it could only be changed or modified by a written instrument. See, also, Bradley v. Harter, 156 Ind. 499, 60 N. E. 139; Napier Iron Works v. Caldwell & Drake Iron Works, 110 N. E. 714. [2] It is only by inference from conduct that the complaint attempts to show an oral waiver of the provision in the bond relative to the time within which suit must be brought, but even if a positive, direct waiver of this provision were alleged, we are of the opinion, under the authorities, that such a waiver is not binding upon appellee, since it is not shown to be in writing. [3] Appellant has pointed out no ambiguity or uncertainty in the bond, nor does it contend that the bond admits of more than one interpretation. It is the law that where a bond is ambiguous or uncertain or is open to two constructions, one favorable to the surety |