Black v. Thomson

Decision Date15 October 1887
Docket Number13,674
PartiesBlack et al. v. Thomson et al
CourtIndiana Supreme Court

From the Carroll Circuit Court.

The judgment is affirmed, with costs.

J Applegate and C. R. Pollard, for appellants.

L. D Boyd, for appellees.

OPINION

Niblack, J.

This was an application to the board of commissioners of the county of Carroll for the location and construction of a free gravel road in that county, under the provisions of the act of March 3d, 1877, R. S. 1881, section 5091, et seq. The petition was signed by Samuel W. Black and a large number of other resident freeholders of the county, claiming to be a majority of land-owners interested in, and to represent a majority of the acres of land which would be benefited by, the proposed improvement.

The application was made at the June term, 1884, at which viewers and an engineer were appointed and ordered to meet and proceed to the discharge of their duties on the 6th day of the ensuing month of October. At the next regular session in September, 1884, no order of continuance, or other order of any kind in the cause, was made; but at a special session held in that month, it was ordered that the time for the meeting of the viewers and engineer should be postponed until the 6th day of the succeeding November. On that day the viewers and engineer met, and, after qualifying, proceeded to make an examination of the proposed line of road. On the 9th day of the following December they made a report favorable to the prayer of the petitioners. Francis Thomson and others thereupon remonstrated against the construction of the road, and the matter was continued until the March term, 1885, during which the report was confirmed and the necessary order made to carry its recommendations into effect.

After the report of the viewers and engineer was filed, but before it was acted on by the board of commissioners, Albert Campbell and about twenty others, who had signed the petition, filed a written motion asking to have their names struck off and withdrawn from the petition for the alleged reason that the petition had been changed in a material respect after they had signed it, offering at the same time to pay their proportion of the costs which had already accrued, but their motion was overruled, and their names were taken into account by the board in estimating the number of persons who had signed the petition. Emma Campbell and perhaps nine or ten others, who had signed the petition, in like manner and for a similar reason asked to have their names struck off and withdrawn from the petition, but their motion was also overruled, and their names were likewise counted at the hearing of the report as persons who had signed the petition. The remonstrants, including Thomson, appealed to the circuit court, where they moved to dismiss the petition upon the ground that, by reason of the failure of the board of commissioners to make any order in the cause at its September term, 1884, as stated, the jurisdiction of that tribunal over the subject-matter of the proceeding had lapsed, and that hence the circuit court had no jurisdiction to hear and determine the controversy sought to be continued by the appeal. That motion was sustained, and the judgment of dismissal which ensued was reversed by this court. See Black v. Thomson, 107 Ind. 162, 7 N.E. 184.

After the cause was remanded to the circuit court, Albert Campbell and those who had joined with him, and Emma Campbell and those who had united with her, respectively renewed their motions for leave to have their names struck off and withdrawn from the petition, and, as preliminary to the decision of those motions, it was agreed that if the motions should be sustained the remaining names would not constitute a majority of the resident land-owners of the county whose lands were to be benefited and assessed, and would not be the owners of a majority of the whole number of acres of land to be so benefited and assessed; but if the motions should be overruled, and the names of the dissatisfied persons should be counted, there would be found to be the requisite majority of names to the petition, and hence enough to authorize the court to order the construction of the contemplated road in accordance with the provisions of section 5095, R. S. 1881.

Upon this agreed statement of facts, and upon a full consideration of the matters before it, the circuit court sustained the motions and permitted the names indicated to be struck off and withdrawn from the petition, and refused to order the construction of the road, as prayed for by the remaining petitioners.

A reversal of these proceedings is sought upon the claim that, under the circumstances, the circuit court had no power to allow a part of the petitioners to withdraw their names, as it assumed to do, and that if it had the power its exercise, in the manner and at the time stated, was against right and justice, and consequently erroneous.

The petition of five land-holders whose lands will be assessed is sufficient to confer upon the board of commissioners jurisdiction over the preliminary proceedings looking to the establishment and construction of a free gravel or turnpike road. R. S. 1881, section 5092.

The petition of that number of interested land-holders authorizes the appointment of viewers and a surveyor or engineer, an examination and survey of the proposed line of road, and a report upon the expediency and public utility of the enterprise. R. S. 1881, sections 5093, 5094.

It is not until after the viewers and surveyor or engineer have reported that the crucial and jurisdictional test arises as to whether the requisite...

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32 cases
  • City of Sedalia ex rel. Gilsonite Construction Company v. Montgomery
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Marzo 1904
    ...52 N.W. 842. The same rule has been applied in proceedings for opening and improving roads. Dunham v. Fox, 100 Iowa 131; Black v. Thompson, 112 Ind. 122; Ralston v. Beall, 30 N.E. 1095. The same obtains in applications to the municipal authorities to call an election upon the question of th......
  • City of Sedalia ex rel. Gilsonite Construction Company v. Montgomery
    • United States
    • United States State Supreme Court of Missouri
    • 30 Marzo 1910
    ...... N. W. (Neb.) 842. The same rule has been applied in. proceedings for opening and improving roads. Dunham v. Fox, 100 Ia. 131; Black v. Thompson, 112 Ind. 122; Ralston v. Beall, 30 N.E. 1095; Hays v. Jones, 27 O. St. 218. The same rule obtains in. applications to the ......
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    ...name before the petition is acted upon. Mack v. Polecat Drainage Dist., 74 N.E. 691; Littel v. Board of Supervisors, 65 N.E. 78; Black v. Thompson, 13 N.E. 409; LaLonde v. of Supervisors, 49 N.W. 960; State v. Board of Supervisors, 60 N.W. 266; Slingerland v. Norton, 61 N.W. 322; State v. C......
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    ...... Sawyer, 52 N.Y. 296; Hays v. Jones, 27 Ohio St. 218; Dutten v. Village of Hanover, 42 Ohio St. 215;. Hard v. Elliott, 33 Ind. 220; Black v. Campbell, 112 Ind. 122, 13 N.E. 409; State v. Eggleston, 34 Kan. 714, 10 P. 3; State ex rel. v. County Commissioners, 10 Neb. 32; 4 N.W. ......
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