On Petition for a Rehearing.
Howard, J.Counsel for appellee earnestly refer us to the provisions of the statute, section 658, R. S. 1881, *569forbidding the reversal of a judgment when it shall appear to the court that the merits of the case have been fairly tried and determined, and contend that the judgment in this case should be allowed to stand and so prevent further litigation.
If, indeed, it should appear to the court that the merits of this case had been fairly tried and determined, it would be our duty to affirm the judgment, but the trial court having sustained a demurrer to the affirmative' matter set up in the answer, we are left unable to say whether appellants were harmed by the rulings. It is only when the allegations of a proper paragraph of pleading may be established by proof under other paragraphs that the sustaining of a demurrer to the paragraph in question will be held harmless. By its ruling on the demurrer, in this instance, the court has said that the facts stated in the answer, even if true, would not constitute a good defense to the action. Under this ruling, also, the affirmative paragraph of the answer was, in effect, stricken out, and the appellants had no right to offer proof to sustain its allegations. “Nor,” as said in Wilson v. Town of Monticello, 85 Ind. 10, “would it be just to -a defendant, who has put in a valid plea, to hunt through the evidence to ascertain whether he was or was not injured, for he is entitled to the benefit of the explicit admission made by the demurrer.” See, also, Pennsylvania Co. v. Poor, 103 Ind. 553; Fleetwood v. Frown, 109 Ind. 567; Rush v. Thompson, 112 Ind. 158.
Counsel intimate further that it could be shown that the allegations made in the answer are not, in fact, true, and that appellants could have obtained an outlet by constructing a drain to another stream, and so have avoided injury to appellee.
In answer to this, “It maybe asked,” as said in Pennsylvania Coal Co. v. Sanderson, supra, “where, short *570of the sea, might the sewer be discharged that the same complaint might not be made?”
Filed Nov. 11, 1893.However that may be, appellee is in no condition to make such contention against the answer. If the averments of the answer were believed to be untrue, they should have been replied to, and the truth of the matter alleged be thus put in issue and determined. Gilmore v. McClure, Admr., 133 Ind. 571, 33 N. E. Rep. 351.
Instead of this, however, appellee chose to demur to the answer, and thus to admit the truth of the facts therein pleaded. The facts alleged being thus admitted, the appellants ought to have judgment.
We do not wish to be understood as holding that appellants were authorized, by artificial means, to conduct the waters from their spring into the stream upon appellee’s land, unless the said waters would have naturally flowed into said stream without such artificial aid; and it was upon this interpretation of the answer that the opinion was written.
The petition for a rehearing is overruled.