Crawford v. Hedrick
| Decision Date | 06 March 1894 |
| Docket Number | 1,267 |
| Citation | 36 N.E. 771,9 Ind.App. 356 |
| Parties | CRAWFORD, TRUSTEE, ETC., v. HEDRICK ET AL |
| Court | Indiana Appellate Court |
From the Warren Circuit Court.
Judgment reversed, with instructions to overrule the demurrer to the complaint.
J. F Hanly and E. Stansbury, for appellant.
This was an action by the appellant, a township trustee, to collect by foreclosure of an assessment, the cost of repairing and cleaning out certain allotments of a public ditch, in accordance with the provisions of the acts of 1889 p. 53, Elliott's Supp., sections 1202, et seq., section 5632, R. S. 1894.
A demurrer to the complaint was sustained.
We are not favored with a brief on behalf of appellee and are not advised as to the grounds upon which this ruling was based, except in so far as we gather it from appellant's brief.
The complaint alleges a compliance with the requirements of the act of 1889 by the county surveyor and the township trustee, and a failure on the part of the land-owner to repair his allotments of the ditch, as provided in said act, and that on the 19th day of January, 1891, the trustee entered into a contract with one McAllister for the repair of the ditch, and that McAllister had entered upon the execution of said contract prior to the 26th day of February, 1891; that the repairs were completed during the summer of 1891 according to the specifications.
It further appears from the complaint, that the ditch in question was four or five miles in length, and that the particular allotments involved herein were not completed until after the amendment of 1891. Acts of 1891, p. 47, R. S. 1894, section 5638, which went into force February 26, 1891.
As appears from appellant's brief, a recovery was denied in the court below upon the ground that the amended section superseded and repealed the old one, and thereby carried down with the old section all rights to enforce the expense of these repairs against the land in question. The amended act differs from the old only in the mode of procedure. By each the duty of making these repairs is charged upon the land and its owner. By each it is provided, that in case of default the trustee shall cause the repairs to be made and collect the expense thereof from the land-owner, a lien upon the land being given as security.
The provisions of the law of 1889 seem to have been strictly followed. When the act of 1891 went into force, it was too...
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