Board of Commissioners of Cass County v. Plotner
| Decision Date | 10 December 1897 |
| Docket Number | 18,018 |
| Citation | 48 N.E. 635,149 Ind. 116 |
| Parties | Board of Commissioners of Cass County et al. v. Plotner |
| Court | Indiana Supreme Court |
From the Pulaski Circuit Court.
Reversed.
Gavin Coffin & Davis, Nelson & Myers, McConnell & Jenkins, Guthrie & Bushnell and Borders & Borders for appellants.
Elliott & Elliott, Kistler & Kistler and M. Winfield, for appellee.
This was a suit by the appellee, Plotner, against the appellants, the board of commissioners, the auditor, and the treasurer of Cass county, and the board of commissioners of White county.
In his complaint the appellee alleged his ownership of certain described lands in Cass county; that the appellants "unlawfully claim title to, interest in, and lien on said real estate, adverse to plaintiff's rights, by reason of said defendants attempting to create a lien thereon by assessing and charging said real estate with certain supposed benefits in the establishing and constructing of what is known as the 'Oliver Hendee Ditch' in Cass county, State of Indiana, which claim and charge against said real estate is without right, and unlawful, and casts a cloud upon plaintiff's title." The prayer was that appellee's title be quieted against the claim of appellants, and that said claim be declared null and void.
The issue was formed by an answer in general denial, and, upon change of the venue from the Cass Circuit Court to the Pulaski Circuit Court, a trial resulted in a special finding with a conclusion of law in favor of the appellee, to the effect that the assessment against his lands for the construction of said "Oliver Hendee Ditch" was void, and that appellee's title should be quieted.
The ditch in question was constructed under and pursuant to the act of March 7, 1891 (Acts 1891, p. 455, section 5690 et seq., Burns' R. S. 1894), was of more than five miles in length and extended into the counties of Cass and White.
The theory of the appellee, and that which it is conceded was followed by the trial court, is that section 15 of said act, section 5704, Burns' R. S. 1894, was and is invalid and ineffectual to create a joint tribunal, consisting of the boards of commissioners of two or more counties for the establishment and construction of drains over five miles in length, extending into two or more counties. The objection urged against the section is that no provision is made for a time of holding joint sessions, a place for holding such sessions, and a mode of organization, for any tribunal consisting of several boards.
The facts specially found recite, in detail, all of the meetings, proceedings, and orders of the boards of said two counties, from the original petitions to the respective boards down to and including the placing of the assessments of benefits upon the tax duplicates for collection. The facts disclose that the appellee had notice of the petitions, notice of the assessments, and of the various steps, as required by said act, relative to ditches in a single county, and knowledge of the issuance, by said counties, of bonds for large sums; that he lived upon his said lands and saw and knew of the construction of the ditch thereupon, as the same progressed; that he made no objection to or complaint against the proceeding, or the construction of the ditch as it affected his lands; that during the progress of the work he joined in a petition to the board of commissioners of Cass county, asking an extension of the time for the payment of the first installment of the assessments, and, pursuant to said petition, a delay of one year in the enforcement of the assessments was allowed by the treasurer of said county.
It appears, also, from the report of the viewers recited in the finding, that his lands were benefited by said ditch in the sum of one hundred and twenty dollars, the sum assessed against said lands; that the improvement was completed and accepted from the contractors who constructed the same, and the assessment was placed upon the tax duplicate of Cass county for collection.
Looking to the complaint, as the standpoint from which to view the special findings, it may be remarked that its character is not free from doubt. As an action to quiet title, it would seem to present an unusual, if not unauthorized, demand in that its purpose was to obtain relief from an assessment, not involving an adverse claim of title, one in which the defendants were mere ministerial officers, without capacity, as such, to assert or maintain a claim of title, or, indeed, to maintain a cloud upon titles to land, which land merely stands charged, under the forms of law, with assessments for public improvements. "Where the purpose of the action is merely to enforce or cancel a lien, incumbrance, or contract, the statute," as to new trials as a matter of right, "does not apply." Liggett v. Hinkley, 120 Ind. 387, 22 N.E. 256; Williams v. Thames, etc., Trust Co., 105 Ind. 420, 5 N.E. 17; Voss v. Eller, 109 Ind. 260, 10 N.E. 74. The reason of the rule so stated is that such an action does not involve the claim of adverse title. While the complaint before us alleges an unlawful claim of title by the appellants, the specific averments characterize this general allegation as an attempt to charge the land with a lien for ditch assessments. If we should limit the purpose of the complaint to quiet title, in the ordinary sense, the findings would be subject to the objection that they do not state an adverse claim of title by the appellants. But, giving the complaint a more liberal interpretation, its object was to cancel, declare invalid, and stay the enforcement of an apparent lien in which the officers had only the interest of public servants, charged with the duty of collecting and enforcing for the benefit of others. In this view the pleading presented an appeal to the equitable powers of the court. It collaterally attacked the assessment as much as if an injunction had been asked, and the result sought was, in effect, to restrain the assertion or enforcement of the assessment as a lien.
Viewing the facts specially found from this standpoint, we are first led to inquire whether the appellee had the right to insist upon the invalidity of the section of the act in question, for, if he had not, we are not required to consider it. Henderson v. State, ex rel., 137 Ind. 552, 36 N.E. 257, and authorities there cited.
It is a general rule, now fully accepted in this State, that where the owner of property subject to assessment for public improvements stands by and makes no objection to such improvements which benefit his property, he may not deny the authority by which the improvements are made, nor defeat the assessment made against his...
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