Cromer v. Bridenbaugh

• Decision Date: 24 April 1919
• Docket Number: 23,147
• Citation: 123 N.E. 115,188 Ind. 393
• Parties: Cromer et al. v. Bridenbaugh et al
• Court: Indiana Supreme Court

123 N.E. 115

188 Ind. 393

Cromer et al. v. Bridenbaugh et al

No. 23,147

Supreme Court of Indiana

April 24, 1919

Rehearing Denied June 26, 1919.

From the Pulaski Circuit Court; W. C. Pentecost, Judge.

Proceedings by Jacob Cromer and others for the construction of a drain in which Otto Bridenbaugh and others filed remonstrance. From an order dismissing the proceedings, the petitioners appeal.

Affirmed.

Reidelbach & Reidelbach, John M. Spangler and Myers, Gates & Ralston for appellants.

Long, Yarlott & Souder, Horner & Thompson and James W. Noel, for appellees.

OPINION

Townsend, J.

Appellants filed their petition in the Pulaski Circuit Court for an open dredged ditch. This ditch lies wholly within the county. Commissioners were appointed and made their report. They afterwards amended this report. The cause was tried and proceedings dismissed on the tenth statutory ground of remonstrance to the amended report. Acts 1907 p. 508, § 4, § 6143 Burns 1914. The trial court construed the commissioners' report to provide for an underground tile drain in the main ditch from station 0 to station 226 plus 74 feet.

It transpires from the evidence that this main ditch, all but about a mile at the upper end thereof, lies in the channel of an old dredged ditch that was constructed in 1897, commonly known as Mud Creek. It is appellants' contention that they should not have been defeated on this cause of remonstrance, for the reason that the report of the commissioners contemplated that Mud Creek should be left open as it was at the time of the filing of the report.

The report provided that in this main ditch from stake "0" to 30 there should be a 10-inch tile; from stake 30 to 75 there should be a 12-inch tile; from stake 75 to stake 100 there should be a 14-inch tile; from stake 100 to 144 there should be a 16-inch tile; from stake 144 to stake 226 plus 74 feet there should be a 24-inch tile; from stake 226 plus 74 to stake 243 to be an open ditch.

Appellants seem to admit that, under the evidence, a 24-inch tile would not be sufficient for the drainage in question, unless Mud Creek is left open above the tile.

There were numerous branches leading into this main ditch, and the proposed drainage was to take care of about 2,000 acres; but appellants claim that there is sufficient in the report to show that the drainage commissioners intended that Mud Creek should remain open to take care of overflow waters. They base this contention upon the proposition that the report of the commissioners provided for a concrete bulkhead at station 226 plus 74 feet, which was concave at the top, being twelve feet high at the ends and seven feet high in the center, to conform to the bottom of the old ditch, Mud Creek; also on the proposition that the tile were to be covered level with the bottom of Mud Creek; also on the proposition that the report required the contractor to remove all trees and shrubs to a distance of twenty-five feet on each side of the drain.

When the first witness was put upon the stand by the remonstrators, in the course of his examination a controversy arose between counsel, on an objection, as to the relation that the proposed tile drain sustained to Mud Creek, remonstrators' attorney asking the witness concerning the cleaning of Mud Creek. Whereupon the trial court remarked: "What has the cleaning of Mud Creek got to do with it?" And shortly thereafter, attorney for the petitioner added to the objection to the question the following: "I want to add an objection that the proposed ditch is a new ditch." Thus it is seen that at the very outset of the trial the court indicated his view of the commissioners' report and counsel for the petitioners adopted that view in this objection. It will hardly do to say that petitioners tried this cause on the theory that this tile drain was supplemental to Mud Creek; or that Mud Creek was to remain as an adjunct to this drain. It seems quite apparent from the record that the case was tried on the theory that this was a new system of drainage completely supplanting the old dredged ditch that was constructed in 1897, which the evidence showed was tramped full in places and had grown up to grass and weeds and brush, had no definite channel. In some places it was very wide and very shallow, in other places quite deep, varying from a few inches in depth to several feet in depth, and varying in width from a few feet to from twenty-five to thirty feet at different points.

It seems from the record that petitioners were proceeding upon the theory that the report called for a tile drain down to station 226 plus 74 feet, and that this drain was to completely supplant the old open ditch; that only after they were met by evidence that the 24-inch tile would not take care of the drainage, did they...