Beatty v. Pruden
| Decision Date | 06 November 1895 |
| Citation | 13 Ind.App. 507,41 N.E. 961 |
| Parties | BEATTY v. PRUDEN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Jackson county; S. B. Voyles, Judge.
Action by James T. Pruden, as trustee of Hamilton township, against Alfred M. Beatty. From an order overruling a demurrer to the complaint and a judgment for plaintiff, defendant appeals. Reversed.
O. H. Montgomery, for appellant. W. T. Branaman, for appellee.
This action was instituted in the court below by the appellee, as trustee of Hamilton township, in Jackson county, against the appellant, to reimburse the former for costs and expenses incurred in cleaning out the appellant's allotment of a public ditch, and to foreclose a lien therefor upon appellant's real estate.
One of the errors assigned and discussed is the overruling of the appellant's demurrer to the appellee's complaint. Appellant's counsel insist that the complaint is insufficient for failing to set forth in detail “all the facts necessary to the legal establishment of the alleged public ditch.” We do not think these averments were required in the complaint. The proceeding is under the Acts of 1889, as amended by the Laws of 1891 and 1893 (Rev. St. 1894, § 5632 et seq.). Under the act referred to, all public ditches are, for the purpose of keeping the same in repairs, placed under the supervision of the township trustee, whose duty it is to see that they are kept cleaned out and open. The statute contemplates that only such drains shall be subject to the supervision of the township trustee, for the purposes mentioned, as have been constructed and opened as public ditches. If the ditch is a public one, and opened and used as such, no matter under what law or in what manner it may have been constructed, it becomes subject to being repaired under the provisions of the act cited, and any attack upon the validity of the original construction would be collateral only if made in a proceeding such as the one at bar. In such an action as this it is sufficient in this regard to allege in general terms that a public drain, describing it, has been heretofore duly established and opened as such. Such cases are analogous to proceedings for the enforcement of liens for the improvements of streets or other public highways. While it is essential in such proceedings to show that the improvements are authorized under the law by virtue of which they are made (Van Sickle v. Belknap, 129 Ind. 558, 28 N. E. 305), it is not required that the plaintiff go behind the improvements, and show the steps taken in the location and establishment of such highway. It is sufficient if he aver in general terms that the highway existed and was a public one. We think the complaint is not open to the objection named.
It is next urged that the complaint discloses the illegality of the allotments, in that it shows that they were not made against the several tracts or parcels of land, but against the several owners thereof, there being in fact but one allotment of 7,800 lineal feet, while there are 9 distinct parcels of land affected by it, containing in the aggregate some 350 acres. Three distinct steps are necessary to the successful prosecution of an action of the character of the present one: Firstly. It must be shown that there is a public ditch. Secondly. There must be an allotment by the county surveyor to the respective owners of the lands through which the ditch passes. Thirdly. It must be shown that the repairs were made in compliance with the statute. The first two steps named are necessarily anterior and fundamental to the third, and their performance may be averred in a general way, while as to the last it must be shown that every act was performed which the law requires in order to constitute this step. The act of making the allotment is a separate and distinct proceeding from that of the cleaning out of the ditch, as much as is the original establishment and construction. Under section 5633, Rev. St. 1894, it is the duty of the surveyor to make the allotments, and, if this has been done under color of the statute, and the surveyor had jurisdiction, the allotments are as binding upon the parties, as long as they stand, as the judgment of a court, and are no more subject to a collateral attack. The only mode of calling in question the validity of such allotments is by appeal to the circuit court from the action of the surveyor. Of course, if the latter did not have jurisdiction, the allotments would be absolutely void, and subject to collateral attack. One of the steps necessary to give the surveyor jurisdiction is the giving of notice as provided by the statute. If no such notice was given, the surveyor had no jurisdiction, and the allotments, being void, may be attacked collaterally. Davis v. Railway Co., 114 Ind. 364, 16 N. E. 639;Trimble v. McGee, 112 Ind. 307, 14 N. E. 83; Railroad Co. v. Soice, 128 Ind. 105, 27 N. E. 429. Assuming for the present that due notice was given, we think the appellant is concluded by the allotment, as, under the cases cited, all relief therefrom must be sought by appeal.
It is next contended that the appellee has not shown himself entitled to any lien. If this were true, and the complaint disclosed that the appellee is still entitled to some relief, the fact that no lien was shown would not be sufficient ground for demurrer; but, as the appellant insists that the complaint does not show the appellee to be entitled to any relief, it devolves upon us to consider the question whether or not the appellee, according to the averments of the complaint, in reality has a lien. The appellant insists that the record of the allotment is the basis of the lien, and that a copy of it must be filed as an exhibit with the complaint. But we do not think the allotment record is the foundation of the appellee's lien, if he have any. Nor can we yield to the contention that the statute itself creates no lien. Indeed, this court has already decided otherwise. Daggy v. Ball, 7 Ind. App. 64, 34 N. E. 246. It is admitted by appellant's counsel that by section 5638, Rev. St. 1894, a remedy is given by a foreclosure of some lien, but counsel insist that, as the lien itself has not been previously created by the statute, the remedy given is futile. The section cited above provides, among other things, that the trustee “may bring suit in the circuit or superior court of the county to collect such expense and fees, and enforce and foreclose the lien on such land,” etc. The appellant asks what lien it is that the trustee is here authorized to enforce, and insists that nowhere in the section or other portion of the statute has such a lien been created. It will be seen by an examination of the statute under consideration that it is made the duty of the trustee, on failure of the landowner to perform the work, to proceed at once to have the same completed himself, and that he “shall certify the costs thereof, including his own per diem, to the auditor of the county, who shall place the same on the tax duplicate as other taxes against such person or corporation, and to be collected as other taxes are collected,” etc. By being placed upon the tax duplicate, the claim becomes a lien on the property of the landowner to the same extent as any other lien for taxes, and may be collected by the same process. It was not necessary for the legislature to declare in express terms that the claim shall be a lien upon the property of the owner, the same as taxes are liens upon such property. Assessments for such improvements are themselves a species of taxation, and that they are so recognized by the law-making power in this instance is manifested by the expression “as other taxes.” The extension of the claim upon the tax duplicate like other taxes places it in the same category with these, and creates a lien upon the owner's property, the same as if the claim were the result of a state, county, or township tax levy. But, while this is true, the trustee is not compelled to leave the collection of this class of taxes to the county officials, but he may proceed to enforce the collection by an action to foreclose the lien. If, however, he does resort to the latter remedy, it devolves upon him to show that he has taken all the preliminary steps essential to the establishment of the lien, and if he fails in this, the complaint will not be sufficient. In the case in hand the complaint contains no...
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