Crume v. Wilson
| Decision Date | 09 January 1886 |
| Docket Number | 12,280 |
| Citation | 4 N.E. 169,104 Ind. 583 |
| Parties | Crume v. Wilson et al |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
The judgment is affirmed, with costs.
M Bell, W. C. Purdum, J. C. Blacklidge, W. E. Blacklidge and B C. H. Moon, for appellant.
J. F Elliott and L. J. Kirkpatrick, for appellees.
In this case the appellant Crume presented to the court below his verified petition praying for the location and construction of a certain ditch or drain. Proof having been made to the satisfaction of the court, that notice of the intention to present such petition had been given in the manner and for the time required by the statute, the court assumed jurisdiction of the case and ordered the same to be docketed as an action pending therein. Three days afterwards, no demurrer or objection to nor remonstrance against such petition having been filed, the court made an order referring the same to the commissioners of drainage. On the 15th day of December, 1884, the commissioners of drainage filed, in open court, their report of assessments of benefits and damages to the lands affected by the construction of such drain; and ten days were then given any owner of lands, affected by such work to remonstrate against the report of such commissioners. No further step was taken in the cause, so far as the record shows, until the 17th day of January, 1885, or thirty-three days after the filing of the report of the commissioners of drainage. On the day last named, the appellant moved the court in writing "for leave to withdraw his petition in the above cause, and to dismiss the same at his costs."
On the same day, the appellee Wilson, whose lands were assessed for benefits in the construction of such drain, appeared and objected in writing to the dismissal of appellant's petition. The court sustained appellee's objection and overruled appellant's motion, and approved and confirmed the report of the commissioners of drainage, and the assessments of benefits and damages mentioned therein. Finally, the court ordered that the construction of such drain be referred to Tence Lindley, one of the commissioners of drainage.
Errors are assigned here which call in question the rulings of the circuit court, (1) in sustaining the objections of appellee Wilson to appellant's dismissal of the cause, (2) in overruling appellant's motion for leave to dismiss the case, and (3) in approving and confirming the report of the drainage commissioners and ordering the construction of the drain.
Under these alleged errors, the question for our decision, and the only one discussed by counsel on either side, may be thus stated: At the time the appellant moved the court for leave to dismiss this cause, was he entitled to such dismissal as a matter of legal right?
When this suit was instituted, and during its pendency in the circuit court, the amended drainage law of March 8th, 1883 (Acts 1883, p. 173, et seq.), and sections 4273, 4279, 4281 and 4283, R. S. 1881, were in force and governed the case. Some of the provisions of section 3 of the amended act of March 8th, 1883, we think, are applicable to the question we are considering, and these we quote as follows: "Upon the making of such report to the court, ten days shall be allowed to any owner of lands affected by the work proposed to remonstrate against the report, and any such remonstrance shall be verified by affidavit and may be for any or all of the following causes:" specifying nine different causes. We quote again: "If the finding be in support of the remonstrance (on the seventh or eighth causes) above enumerated, the proceedings shall be dismissed." We quote further from the same section: "If there be no remonstrance, * * * the court shall make an order declaring the proposed work established, and approving the assessments, and shall direct some one of the commissioners to construct and make the proposed work."
There is no provision of our drainage statutes which authorizes the petitioner for a drain to dismiss his cause at any time, of his own motion. Appellant's counsel concede this, but they say, and correctly so we think, that "some at least of...
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