Anderson v. Baker

• Decision Date: 18 December 1884
• Docket Number: 11,593
• Citation: 98 Ind. 587
• Parties: Anderson v. Baker
• Court: Indiana Supreme Court

98 Ind. 587

Anderson v. Baker

No. 11,593

Supreme Court of Indiana

December 18, 1884

From the Clinton Circuit Court.

The judgment is affirmed, with costs.

A. E Paige and S. O. Bayless, for appellant.

S Vanton, for appellee.

OPINION

Zollars C. J.

This is a proceeding for the establishment and construction of a drain, under the act of 1881, R. S. 1881, section 4273 et seq., as amended by the act of 1883, Acts 1883, p. 173.

After the filing of the report of the commissioners of drainage, appellant filed a remonstrance against the report, in which he stated four causes, the first and second of which are as follows:

"1st. Because said report does not describe the best and cheapest method of drainage, termini and route for the complete drainage of said petitioner's lands, to wit," giving description of the petitioner's lands.

"2d. Because the said lands of Abner Baker, the petitioner, can be as well drained without affecting the lands of the remonstrant or others, by drainage and an outlet through and on his own lands, which drainage can be had in a better and cheaper manner than the route and manner contained in said report."

On motion of appellee these causes were struck out by the court, and appellant excepted. Following this appellant withdrew the third and fourth causes of remonstrance.

Of the first cause of remonstrance, it might well be said, as was said in the recent case of Higbee v. Peed, ante, p. 420, that if it should be conceded that a question of such a character could be made by the remonstrance, it would not follow that striking out the cause as stated is an available error. As stated, it does not show what would be a cheaper or better route or method of drainage. It presents nothing certain, and tenders no definite issue for trial. It would be next to impossible for the petitioner to fully and intelligently meet such a charge. We shall, however, in this case, place our decision upon broader grounds than this.

The argument of appellant's counsel upon the second cause is that these public drains can not be constructed except by the exercise of the power of eminent domain; that the statute under which this proceeding is had limits the exercise of that power to such cases as affect the public in some of the ways therein named, and that hence, if the lands of the petitioners may as well be drained by a ditch thereon, without affecting the lands of others, there is no authority for constructing it on the lands of others; that the petitioner must bring his proceedings strictly within the statute, and show that the drainage of his lands can not be accomplished in the best and cheapest manner without affecting the lands of others. Acts 1883, p. 174.

The claim is that the remonstrant must, at some time, have the right to make this question, which is regarded as jurisdictional, and that as it can not be made before it is known that the commissioners will locate the drain as asked in the petition, he must have that right by way of remonstrance.

It must be conceded that the property of the citizen can not be taken for the mere private advantage of another citizen. Chambers v. Kyle, 67 Ind. 206; Tillman v. Kircher, 64 Ind. 104; Anderson v. Kerns Draining Co., 14 Ind. 199; Deisner v. Simpson, 72 Ind. 435; Blackman v. Halves, 72 Ind. 515; Wild v. Deig, 43 Ind. 455 (13 Am. R. 399). But those drains may be constructed if they will be of public utility, or if, by their construction, "the public health will be improved, or one or more public highways of the county will be benefited. Wishmier v. State, etc., 97 Ind. 160; Neff v. Reed, ante, p. 341; Chambers v Kyle, supra.

These are the elements which give public character to the work, and bring the proceeding within the limits of the power of eminent domain. As to whether or not any particular case is within this limit, may be made an issue by the filing of the eighth statutory cause of remonstrance. Acts 1883, p. 177.

It is expressly provided by this same statute, that if the finding of the court be in support of the remonstrance on this cause, the proceeding shall be dismissed.

The question as to whether or not the drain may be constructed in a better and...