Beery v. Driver

• Decision Date: 08 March 1906
• Docket Number: No. 20,668.,20,668.
• Parties: BEERY et al. v. DRIVER et al.
• Court: Indiana Supreme Court

167 Ind. 127
76 N.E. 967

BEERY et al.
v.
DRIVER et al.

No. 20,668.¹

Supreme Court of Indiana.

March 8, 1906.

Appeal from Circuit Court, Allen County; Owen N. Heaton, Judge.

Petition by John S. Driver and others for the establishment of a ditch, to which Henry Beery and others remonstrated. From a judgment in favor of petitioners, affirming a determination of the board of county commissioners establishing the ditch, remonstrants appeal. Reversed.

[76 N.E. 968]

Aiken & Belot and W. & E. Leonard, for appellants. T. E. Ellison and H. G. Keegan, for appellees.

MONTGOMERY, J.

This is a proceeding for the establishment of a ditch, begun before the board of commissioners of Allen county, 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 overruling 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 refusal 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 et al. v. Shaeffer, 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...