Brett v. Pretorious
| Decision Date | 27 October 1911 |
| Docket Number | No. 7,300.,7,300. |
| Citation | 48 Ind.App. 527,96 N.E. 211 |
| Parties | BRETT, County Surveyor, et al. v. PRETORIOUS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; U. S. Lesh, Special Judge.
Action by George Pretorious against Charles H. Brett, county surveyor, and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Alvah Taylor and Fred E. Sutton, for appellants. D. F. Brooks, for appellee.
This is an action by the appellee, George Pretorious, against the appellants, Charles H. Brett, surveyor, J. P. Noftzger, auditor, and John H. Morrow, treasurer of Wabash county, Ind., to declare void a certain assessment against the lands of appellee for cleaning out a public ditch, and to have the same canceled upon the records and tax duplicates of the auditor and treasurer of Wabash county.
The errors assigned and presented by the briefs are: (1) Error of the court in overruling each of the separate demurrers of the appellants to appellee's complaint; and (2) error of the court in overruling the motion for a new trial.
The complaint alleges, in substance, that appellee was and is the owner of certain real estate in Wabash county, Ind.; that during the months of February and March, 1906, appellant Brett hired men by the day and set them to work to clean out a public drain known as the “Urbana ditch”; that he did not before so doing post notices for bids, nor let the same by contract to the lowest and best bidder; that said ditch was cleaned out in the manner aforesaid without being let by contract, all of which was done without the knowledge or consent of appellee, and without any notice to him whatsoever; that on the 6th day of June, 1906, long after the work was completed, said Brett made assessments on the various tracts of land affected by said ditch, including the land of appellee described in his complaint, to secure funds to pay for the work aforesaid; that appellee's real estate was assessed the sum of $42.37, and on June 20, 1906, appellant Brett certified the same to the auditor of Wabash county, who placed the same upon the tax duplicates of said county against the land of appellee aforesaid; that said assessment will be collected unless canceled and set aside, and the same is largely in excess of the benefit to appellee's said land.
Appellant Brett assumed to proceed in accordance with the act of 1905 (Acts 1905, p. 474, § 10), which provides that the surveyor of the county in which the proceedings were had establishing the ditch should keep the same in repair, and further provides that “such work or repairs shall be let as a whole or by sections, as the surveyor may deem for the best interests of the parties to be affected and the lowest and best bidder or bidders, after notice first given for ten days by posting in three public places in each township, *** and one at the door of the courthouse.” The statute further provides that: “For the purpose of reimbursing the county treasury the surveyor, as soon as the contracts for the repairs are made, and before any work is done thereon, shall apportion and assess the costs thereof upon the lands and corporations to be benefited by such repairs in proportion to such benefits and in no case in excess of the benefits.” The statute also provides for notice of the assessment by posting and for an appeal from the assessment to the circuit or superior court, which appeal shall be tried by the judge, and the only questions available are the necessity of the repairs, the cost thereof, and whether the appellant's lands are benefited, and, if so, the amount of his assessment.
It is insisted that the complaint is insufficient, and that the action cannot be maintained because it is a suit in equity, and an adequate remedy at law is provided by an appeal to the circuit or superior court. The statute authorizing the surveyor to keep public ditches in repair requires a notice of the letting to be posted and the work be let by contract as above shown.
[1] It has frequently been held that, where the statute prescribes the method to be pursued by a public official or an...
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