Beery v. Driver

• Decision Date: 08 March 1906
• Docket Number: 20,668
• Citation: 76 N.E. 967,167 Ind. 127
• Parties: Beery et al. v. Driver et al
• Court: Indiana Supreme Court

76 N.E. 967

167 Ind. 127

Beery et al. v. Driver et al

No. 20,668

Supreme Court of Indiana

March 8, 1906

Rehearing Denied June 29, 1906.

From Allen Circuit Court; Owen N. Heaton, Special Judge.

Drainage proceedings by John S. Driver and others against which Henry Beery and others remonstrate. From a judgment for petitioners, remonstrants appeal.

Reversed.

Aiken & Belot and W. & E. Leonard, for appellants.

Thomas E. Ellison and Hugh G. Keegan, for appellees.

OPINION

Montgomery, J.

This is a proceeding for the establishment of a ditch, begun before the Board of Commissioners of the County of Allen, in which appellees were petitioners and appellants were remonstrators. The board rendered a final judgment establishing the ditch from which an appeal was taken to the circuit court, where a trial by jury resulted in a verdict and judgment in favor of the petitioners.

Appellants jointly and severally assign as error the over ruling of their motion for a new trial.

Complaint is made in the motion for a new trial of the insufficiency of the evidence to sustain the verdict, and of the giving and refusing to give certain instructions, and other errors of law occurring upon the trial.

Appellees' counsel insist that the instructions are not in the record, but they are manifestly mistaken. The instructions were all properly embraced in a special bill of exceptions duly signed and filed by the trial judge, from which it appears that at the time of giving the instructions complained of appellants' counsel duly excepted to the giving of each of the same, and also excepted to the refusal to give each instruction tendered by them and refused by the court.

The only issues presented for trial upon appeal were whether the aggregate benefits would exceed the total expense of the ditch, and whether the same would be of public utility. Appellants joined in the remonstrance and in the motion for a new trial. Appellees' counsel suggest that upon the authority of Yeoman v. Shaeffer (1900), 155 Ind. 308, 57 N.E. 546, separate remonstrances and motions for a new trial should have been filed. This objection if tenable should have been raised in a proper manner in the court below; but, where parties have the requisite qualifications, there can be no impropriety in their joining in a remonstrance, upon grounds not affecting their interests severally, but of a general character, and of a nature, if true, to defeat the work as an entirety. The questions involved are properly presented, and appellees' objections are untenable and cannot be sustained.

We cannot reverse the case upon the weight of the evidence.

At the request of appellees' counsel the court gave to the jury the following instruction: "I further instruct you that there is no legal duty resting upon these petitioners to keep a ditch through their premises open and free from obstructions, except at the time and in the manner they are required to do by the county surveyor and the township trustee. You will therefore not consider whether it is the fault of any one that the present ditch is obstructed and insufficient to carry off what water comes through it. The reasons for the condition do not concern us in the trial of this cause."

The court refused to give the following instruction requested by appellants: "If you find from the evidence in this cause that the plaintiffs, who are the petitioners for the construction of the proposed ditch, permitted the ditch now existing across their lands to be trampled in by stock, or otherwise to become filled up and in need of cleaning, and you find that the exclusive benefits to be derived from the construction of the ditch in question here would be to clean out and put in proper condition said ditch now existing, and you further find that said filling up of said existing ditch was caused by neglect or fault of the plaintiffs alone, then you would be authorized to find that the proposed ditch is not of public utility, as a person cannot allow a ditch on his own premises through his own fault or neglect to become out of repair and then call upon his neighbors or parties owning lands along the route of the proposed ditch to help him pay for necessary cleaning of the same, and if you find such facts to exist it would then be your duty to find for the defendants."

These two opposing instructions present the controlling contentions of the parties with respect to the public utility of the proposed ditch. The new work consisted of widening and deepening a section of an existing public ditch. The evidence as presented to us tends strongly to prove that by cleaning out the existing ditch to its original dimensions all the uses of the proposed work would be effectually accomplished.

Section 5637 Burns 1901, Acts 1893, p. 271, provides that after allotments for repairs have been made, "it shall be the duty of the owner of each tract of land * * * to clean out and repair the portion of said work so allotted to such tract of land * * * between the first days of August and November of each and every year." To secure a consecutive and orderly performance of the work it is made the duty of the township trustee, by § 5638 Burns 1901, Acts 1891, p. 47, § 2, to fix the exact limits after the first of August and before the first of November within which such work must be done.

Section 5639 Burns 1901, Acts 1889, p. 53, § 8, provides: "If the portion or any part thereof of such ditch or drain so allotted to the land of any owner, * * * becomes filled or obstructed by the negligence of any owner or occupant of any land, or by cattle, horses, hogs or other stock of such owner or occupant, it shall be the duty of such owner or occupant to remove all such obstructions or fillings, at his own expense, before the 31st day of August of each year."

In discussing the provisions of §§ 5637, 5638 supra, in the case of Daggy v. Ball (1893), 7 Ind.App. 64, 66, 34 N.E. 246, the Appellate Court said: "It will be observed...