Rayl v. Kirby

• Decision Date: 20 June 1913
• Docket Number: 22,234
• Citation: 102 N.E. 136,180 Ind. 553
• Parties: Rayl et al. v. Kirby et al
• Court: Indiana Supreme Court

102 N.E. 136

180 Ind. 553

Rayl et al. v. Kirby et al

No. 22,234

Supreme Court of Indiana

June 20, 1913

Rehearing Denied December 9, 1913, Reported at: 180 Ind. 553 at 561.

From Howard Circuit Court; William C. Purdum, Judge.

Proceedings by William Kirby and others for the construction of a drain in which William H. Rayl and others file remonstrance. From a judgment for petitioners, the remonstrators appeal.

Affirmed.

Blacklidge Wolf & Barnes, for appellants.

Herron & Byers and Harness, Moon & Voorhis, for appellees.

OPINION

Myers, J.

Proceeding by appellees for tiling a portion of an open public drain in Howard County, by proceedings before the board of commissioners. On general remonstrance the proceeding was dismissed. On appeal to the circuit court the remonstrance was held insufficient, and such proceedings had that the ditch was established, from which order this appeal is prosecuted. The errors assigned are predicated on exceptions to the conclusions of law on the court's special finding of facts, and in overruling the motion for a new trial, and the question to be determined is the sufficiency of the remonstrance.

The petition was signed by four persons: two Kirbys, husband and wife, who owned one tract of land affected as tenants by the entirety, and the husband owned a tract in his individual name; one signer was in fact the township trustee, but signed as an individual, though he had personally no interest; the fourth person was an individual owner. The persons named in the petition as owners of land were twenty-two in number, including in three instances husbands and wives owning as tenants by the entirety, the two Kirbys being thus included, and in addition civil Clay Township. That is, there were twenty-two persons named, six of whom were husbands and wives, and in addition the civil township. Of these individuals three were admittedly nonresidents of Howard County. A fourth person was notified only as a nonresident, as to whom it is claimed that he was in fact a resident, which was a fact disputed on the trial, and he received the notice by mail and made no appearance or objection in the proceedings. Within the twenty days provided by the statute (§ 6142 Burns 1908, Acts 1907 p. 508) for remonstrating, a remonstrance was filed containing the names of twelve of the persons, individual owners, named in the petition as affected, two being husband and wife. Among these was Elizabeth Merrill a life tenant. There were in fact three remaindermen, persons resident of Howard County, and the ditch ran through their land. None of the three remaindermen were served originally with notice, or appeared to the action. It appears from the record that after the report of the commissioners came in, notice was ordered given to additional parties, and notice is shown to have been given to the trustee of the civil township, and the three resident remaindermen. This of course was after trial on the remonstrance. The court found on the trial that twenty-two persons, and in addition the civil township, were named in the petition as affected by the proceedings, in which number were included the life tenant, but not the remaindermen, and each of the husbands and wives of three instances of tenancies by the entirety, notice having been given to each, except that in cases of tenancy by the entirety notice was given the husband only. That twelve of the persons so named, including the life tenant, were residents of Howard County and signed the remonstrance, one of whom was the wife of one of the tenants by the entirety. That eight of the persons named who were residents of the county did not sign the remonstrance, of which two were the wives of tenants by the entirety, the two husbands being also counted to make up the eight, and the civil township was also counted to make up the eight, as also was the landowner Boyd, as to whom the question of residence was waged. It was also found that there were three remaindermen nonresidents of the county. The court concluded that the remonstrance was insufficient.

It is the position of appellants, that husbands and wives, where the real estate is held as tenants by the entirety, can only be counted as one person, and that in case one of the spouses holds other property in his or her individual right, having been counted as one with the spouse, he or she cannot be again counted, or taken into consideration. In view of our conclusions it is unnecessary to determine this question as the judgment must be affirmed independently of that question, on other grounds which eliminate the question.

It is next urged by appellant that "persons not named in the petition or remonstrance cannot be counted even though they may be affected by the proceeding." This cannot be granted. Take this case: Mrs. Merrill is the life tenant; three of her children, remaindermen, reside in Howard County; the ditch runs through their land; if an assessment is made against the land, the burden must be borne by her and by them. Hay v. Mc Daniel (1901), 26 Ind.App. 683, 60 N.E. 729. For the purpose of obtaining jurisdiction to assess the land, it is sufficient to describe the land as it appears to be owned by the last tax duplicate or record of transfers, but that is a matter wholly apart from the actual ownership of the land, and the fair construction of the statute is that not only those who are named in the petition but in addition those "who may be affected by any assessment or damages" (damaged). The object is to enable two-thirds of those who are really affected to express their desires and defeat a proceeding if they so elect. If this were not so, it would be an easy matter in case of numerous persons owning as tenants in common by inheritance, whose lands still stand on the tax duplicate in the name of the ancestor, to defeat their rights, arising from silence, by not naming them in the petition, when silence may be as effective as affirmative remonstrance. It is conceded that they may come in by remonstrance, and are then to be counted, but they may be affected by silence as well as by affirmative action, for they may be, and in this case were, named in the report, and brought in by notice. The fact that they may be affirmatively heard, is a concession that they are...