The Town of Freedom v. Norris. It is not strictly correct, however, to say that such alluvial formation attaches to the easement, for that is a mere incorporeal hereditament, but it attaches to the land covered by the easement, and the right of the public to use the aceretion to the same extent as the land over which it was granted, at once attached to the addition. In our opinion the easement dedicated by Freeland in this case was of such a nature that it attached itself to the alluvial formations added to the eighty-foot strip of land described in the special finding, and conferred upon the public the right to pass over such formations for the purposes intended by the dedication. Had there been a continuous use of the easement created by Freeland's dedication, the case would be free from difficulty; but, as we have seen, the easement had not been used for a period of more than thirty years before the commencement of this suit, and the chief object sought by Freeland, namely, the promotion of commerce on White river, had ceased to exist. It is contended by the appellee that under these circumstances we must presume an abandonment of the easement created by the implied dedication made by Freeland in the year 1834. Whatever may be the rule as to an easement created by express grant, much authority is to be found holding that public easements created by an implied dedication may be abandoned by the public. It seems to be settled that a town or city may not abandon its public streets and alleys, and that the statute of limitations does not apply to one who wrongfully obstructs the same, and this, principally upo the ground that such obstruction is a public nuisance, indictable, and is a continuing offence. Pettis v. Johnson, 56 Ind. 139; Sims v. City of Frankfort, 79 Ind. 446. But that this rule does not apply to easements other than streets and alleys, and such as are not necessary to the public convenience, seems to be settled. itudes, pp. 242 and 243; Washburn Easements and ServCity of Pella v. Scholte, 24 Iowa, The Town of Freedom v. Norris. 283; Callaway Co. v. Nolley, 31 Mo. 393; Baldwin v. City of Buffalo, 29 Barb. 396; Commissioners, etc., v. Taylor, 2 Bay, 282; Collett v. Board, etc., 119 Ind. 27; Fox v. Hart, 11 Ohio, 414; Rowan v. Town of Portland, 8 B. Mon. 242; Knight v. Heaton, 22 Vt. 480. In City of Pella v. Scholte, supra, the title to a public square was involved, and in discussing the questions arising on the statute of limitations, Dillon, C. J., who delivered the opinion of the court, said: "Rights of this character may be acquired by the public by the requisite user, and it would seem reasonable that the public, with a knowledge of its rights and of the adverse claim by an individual, may lose those rights in a similar manner." The maxim "once a highway always a highway," does not exist except where it involves the rites of abutters or those occupying a similar position. "But, In Elliott Roads and Streets, p. 658, it is said: where no such rights are involved, the public may either abandon or vacate a highway, and, where such rights do exist, they may also be abandoned by those entitled to assert them. * * * It is proper, therefore, to state that the highway may cease to exist either by abandonment or vacation according to law." In this case the easement in question was dedicated for the purpose of facilitating commerce on White river by means of transporting freight on flat boats. In carrying on such business it was necessary that the public should have access to the river in order to build and load boats, and to deliver and receive such articles as had been or were to be shipped. Commerce on the river was entirely abandoned more than thirty years before the commencement of this suit, and with such abandonment the public ceased to use the easement in controversy. We are of the opinion that when commerce on White river ceased the easement in question ceased also to ex The Town of Freedom v. Norris. ist. If one owning the fee should dedicate a right to pass over his land to reach a particular church or other public place, if the church or other place should be destroyed or abandoned, the right of the public to continue the use of the way for purposes other than those for which it was intended could not be maintained. So, in this case, as the easement was given for the purpose of carrying on commerce on White river, we think the right to use it ceased with the cessation of commerce on that stream, and that it must be held that the non-user for the period of thirty years, when taken in connection with the other facts in the case, amounts to an abandonment of the rights created by the implied dedication by Freeland to pass over his land. We think the judgment should be affirmed on still another ground. It is not shown by the special finding of facts that the alluvial additions constituting the twenty-five acres of land in controversy extend east of the land dedicated by Freeland. For anything that appears it may belong to the land retained by Freeland not included in the dedication. If we should reverse the cause, with instructions to the circuit court to re-state its conclusions of law and render a decree for the appellant, to what land should the decree apply? Certainly not to the alluvial attached to the land reserved. by Freeland. The burden was upon the appellant to show what alluvial, if any, was attached to the land covered by the easement, and as the court does not find that any addition has been made to this particular land by accretions, we must presume that there was none. Vinton v. Baldwin, 95 Ind. 433; Citizens Bank v. Bolen, 121 Ind. 301. To warrant a judgment in favor of a party on a special finding the finding must contain all the facts necessary to the judgment, and nothing is to be taken by intendment. Vinton v. Baldwin, supra; Buchanan v. Milligan, 108 Ind. Scott v. Stetler et al. 433; Waymire v. Lank, 121 Ind. 1; Kehr v. Hall, 117 Ind. 405. In our opinion the court did not err in its conclusions of law on the facts found. Judgment affirmed. Filed May 26, 1891. PRACTICE. No. 14,171. SCOTT v. STETLER ET AL. · Demurrer.— Answer.-Insufficient Paragraph.- Overruling Demurrer to.-Effect of.-It is error to overrule a demurrer addressed to an insufficient paragraph of answer, although there are other and more comprehensive paragraphs of answer. COVENANT.-Running with Land.— What is.—A covenant in a deed of certain premises, "together with the mill and all privileges and easements thereto belonging," is a covenant running with the land that the grantors had a right to maintain the dam at the height it was when the deed was made. SAME.-Action for Broken Covenant.-Subsequent Grantee.- When can not Maintain. In a suit by a subsequent grantee against the grantors in the above deed based upon the breaking of said covenant, the grantors may successfully defend by showing that they sold the land with the agreement that the grantees, among other things, were to repair or rebuild the old dam, and that it should not be raised beyond its original height; that for the purpose of deceiving their grantors the grantees destroyed the marks indicating the height of the dam, and falsely represented that the height was not increased, and that therefore the grantors executed the deed in ignorance of the fact that the height of the dam had been increased. From the Kosciusko Circuit Court. J. S. Frazer and W. D. Frazer, for appellant. H. S. Biggs, S. J. North and J. D. Cook, for appellees. ELLIOTT, J.-The contention of appellees' counsel that VOL. 128.-25 Scott v. Stetler et al. an error in overruling a demurrer to an insufficient paragraph of answer is harmless in a case where there are other and more comprehensive paragraphs of answer, can not prevail. Counsel confuse a ruling holding a good paragraph bad with a ruling holding a bad paragraph good, and are thus led into a radical error, for there is a clear and important difference between the two classes of cases. It may not prejudice a defendant to sustain a demurrer to one paragraph of an answer, where there are others of similar character; but it does prejudice a plaintiff to hold an answer to be a bar to his cause of action which does not contain facts constituting a defence. The question is, however, so fully covered by the decisions that discussion is not required. Messick v. Midland R. W. Co., ante, p. 81; Thompson v. Lowe, 111 Ind. 272; Epperson v. Hostetter, 95 Ind. 583; McComas v. Haas, 93 Ind. 276 (281); Eve v. Louis, 91 Ind. 457 (463); Sims v. City of Frankfort, 79 Ind. 446 (449); Over v. Shannon, 75 Ind. 352; Kernodle v. Caldwell, 46 Ind. 153 (158); Abdil v. Abdil, 33 Ind. 460. The appellant's complaint is founded upon a deed executed by the appellees to Joseph Harris and James G. Ackerman, in 1877. By successive conveyances the appellant became the owner of the real estate described in the deed. The deed of the appellees conveyed a flouring mill and appurtenances. At the time the deed was executed a dam five feet in height was appurtenant to the land, and created the pool from which the water that propelled the mill machinery was obtained. The dam caused the water to flow back upon the land of Julia Hubbell, and for the injury thus produced she brought an action against the appellant, and, after a contest, recovered judgment for damages, and also secured an order reducing the height of the dam to three feet. The appellees were notified to defend the action. To the complaint, which stated the facts of which we have given a synopsis, the appellees answered that they sold to John Anderson and Joseph Harris two-thirds interest in the land, mill and appurte |