Brooks v. Morgan
| Decision Date | 08 December 1905 |
| Docket Number | No. 5,702.,5,702. |
| Citation | 36 Ind.App. 672,76 N.E. 331 |
| Parties | BROOKS v. MORGAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.
Suit by Marion Brooks, as guardian, against Simeon Morgan. From a judgment for defendant, plaintiff appealed to the Supreme Court, from whence the cause was transferred to this court. Affirmed.Roberts & Vestal, for appellant. W. S. Christian, for appellee.
The court below sustained the appellee's demurrer for want of facts to the complaint of the appellant, suing as the guardian of one Elizabeth Pilkerton, a person of unsound mind, and widow of Jesse Pilkerton, deceased. It was alleged that she was the owner for her life of certain described land in Hamilton county, of which she, by her guardian, was in possession. It was averred that in 1898 one Anderson Blanton and others filed, in the auditor's office of that county, a petition to the board of commissioners of the county to cause to be constructed a drain for the purpose of draining the lands of the petitioners; that such proceedings were had thereunder that the board appointed three viewers to view the proposed drain and to report their doings thereon, as provided by law; that these viewers viewed the same and reported in favor of the establishing of the drain, and that it be established over and along a route described at length in the complaint herein; and they reported the number of acres benefited by the construction of the drain and the assessments against the same for the construction, which assessments are set out in the complaint, among them being an assessment against a portion of said land of appellant's ward, designated as land of the Jesse Pilkerton estate; that the viewers recommended in their report that the drainage would be best accomplished by a 10-inch tile drain from the beginning of certain stakes designated, and by tile drain of different and larger sizes described between other designated points, etc., with further recommendations stated concerning the drain; also that the viewers further reported, allotting the ditch for the purpose of construction and assigning to each of the landowners so assessed their respective allotments; that the board approved the report and ordered the establishment of the ditch, and that it be constructed along the route described in the report; that such proceedings were duly had, that the drain was constructed in accordance with the report and order of the board, and the several persons whose lands were so reported and assessed constructed their respective allotments; that part of the land in which appellant's ward holds a life estate was assessed for such construction in the sum of $20; that appellant constructed said allotment against the Jesse Pilkerton estate at a cost equal to the assessment, to wit, $25, said drain at the commencement of the suit at bar having been for five years constructed and in successful operation and properly draining the land assessed for its construction, including the land of appellant's ward; that in wet seasons the drain is tested to its full capacity to carry off the water which flows into it from the lands so assessed, and the part of the drain which is tiled is filled to its utmost capacity. This drain, it is alleged, is known as the “Blanton Drain.” It is further alleged that in 1903 a petition was filed by one Milton Hare and John Manford, with the auditor of the county, praying the board of commissioners of the county to cause to be constructed a certain drain for the purpose of draining the lands of the petitioners, and such proceedings were had thereunder before the board; that at the July term, 1903, the board appointed three viewers to examine the proposed drain and to report their doings thereunder according to law; that these viewers afterward reported in favor of the drain, and filed their report in the auditor's office in September, 1903, recommending that the drain be established, and that the construction thereof be ordered, and that the drain be located over and along a certain route described, the terminal point being in that part of the Blanton drain consisting of one row of 10-inch tile, and that certain lands would be benefited, with the names of owners and the number of acres assessed for construction, as set out in length in the complaint, the name of the appellant or that of his ward or that of said estate not occurring, and the ward's land not being mentioned; that the viewers further reported, recommending that the ditch be not allotted for construction among the landowners assessed, but that it be constructed by letting the contract by sale by the auditor, as provided by law; that the board of commissioners approved this report and ordered that the drain be established and constructed over and along the route described in the report; and afterward the auditor, after duly advertising the same, let the construction to the appellee, Simeon Morgan, who entered into contract to construct the drain in accordance with the report and the order of the board of commissioners; and he was giving out in speeches that he would so construct the drain. It was alleged that the appellee would construct the drain unless enjoined by the court below; that the drain would empty into the Blanton drain some rods below its upper end and in a part thereof constructed with 10-inch tile; that the proposed drain where it would so empty would be of the same size as the Blanton drain; that the tiling in the proposed drain at wet seasons or after considerable rainfall would not be more than sufficient in size to carry the water that would fall and naturally would flow from the lands proposed to be assessed for its construction; that it would drain into the Blanton drain nearly 30 acres of land, not assessed for the construction of the Blanton drain, being lands of Hare and Goldsmith; that at the time of the assessments for the construction of the Blanton drain and of its construction said lands of Hare and Goldsmith were drained by an underground drain in an easterly direction, and in no way connected with the Blanton drain, and those persons objected to having their lands assessed for the construction of the Blanton drain, for the reason that they were drained by the underground drain in an entirely different direction and through an entirely different outlet; that by the construction of the proposed drain a large volume of water from these lands of Hare and Goldsmith would be thrown through it into the Blanton drain, thereby throwing more water into it than it could carry, causing it to overthrow and damage and ruin the public drain, to the irreparable injury of the Blanton drain, destroying its usefulness, and would render it incapable of draining the lands which were assessed for its construction, including the land in which appellant's ward holds a life estate, nearly 20 acres of which drain into the Blanton drain; that a line of tile from this land empties into that part of the Blanton drain constructed by 10-inch tile; that this part of her land has no other outlet than into the Blanton drain; that if the proposed Hare and Manford drain be constructed the water from the lands of Hare and Goldsmith will be thrown upon and into the Blanton drain, causing said land of appellant's ward to be overflowed, rendering a part thereof too wet to grow crops, to the great and irreparable damage of the appellant and his ward's said life estate; “that plaintiff had no notice or knowledge of any kind whatever of the proposed construction of the drain petitioned for by said Hare and Manford; that he had no notice or knowledge of the filing of the petition for the...
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