Daggy v. Ball
| Decision Date | 25 May 1893 |
| Docket Number | 889 |
| Citation | 34 N.E. 246,7 Ind.App. 64 |
| Parties | DAGGY, TRUSTEE, ETC., v. BALL ET AL |
| Court | Indiana Appellate Court |
From the White Circuit Court.
Judgment reversed.
T. F Palmer, C. C. Spencer, W. H. Hamelle and -- Hartman, for appellant.
E. B Sellers and W. E. Uhl, for appellees.
The appellant brought suit to enforce against the land described in his complaint, a lien for the expense of repairing and cleaning out that portion of a public ditch allotted to it under the law of 1889. After a trial and finding for the appellant, the court sustained appellee's motion in arrest of judgment. From this ruling the appellant appeals thus bringing before us for determination the sufficiency of the complaint.
The complaint is quite lengthy, and we will not set it out in this opinion, but will take up and consider the various objections presented to the complaint by appellees.
It is contended, by appellees, that the complaint was bad because "it is nowhere charged that appellee's allotment of the ditch for repairs was out of repair or needed cleaning."
The complaint shows the allotments to have been regularly made, the proper notice thereof given, and their final confirmation. It also shows that appellant, "after the 1st day of November, 1890, examined said John F. Price ditch, and found that the defendants had failed to clean out and repair the portions of such ditch allotted to said lands, whereupon he caused such portions to be cleaned out and repaired at a cost which is the fair cash value of the work," etc.. Also: "That said lands are and have been long before said allotments were so made, in the name of said Jennie T. Ball, and that all the defendants claim some interest in said land, the exact nature of which is unknown to plaintiff, and they are made parties hereto to answer to their interest," etc.
By section 6, p. 56, of the act of 1889, being section 1207, Elliott's Supp., it is made the duty of the land-owner "to clean out and repair the portion of said work so allotted to such tract of land * * between the first days of September and November, of each and every year thereafter."
By section 7, of the act of 1889, Elliott's Supp., section 1208, it is made the duty of the township trustee "as soon after the first day of November of each year as is practicable, to examine the ditches in his township, and if he find that any such owner, corporate road or railroad has failed to clean and repair the portion of said ditch or drain allotted to the lands of such owner, or to such corporate road or railroad, such trustee shall at once cause such portion to be cleaned out and repaired at the cost of such owner, or such corporate road or railroad, and may certify such expense to the auditor of the county, who shall place the same, together with the fees of such trustee, on the duplicate as an assessment upon the land of such owner, or upon the right of way, property and franchises of such corporate road or railroad, and the same shall be a lien thereon, and collected as other taxes are collected, and, when collected, shall be paid over to such trustee; or such trustee may recover such expense and his fees before any justice of the peace of the township where such owner resides, or through which such road or railroad runs, or he may bring suit in the circuit or superior court of the county to collect such expense and fees and enforce and foreclose the lien upon such land."
It will be observed that these sections do not confer upon the trustee any discretionary power to examine the drains, and ascertain and determine whether they really need cleaning out in order to enable them to subserve their purpose, nor do these sections require the owner to clean out if really needed to make the ditches work right. On the contrary, by these sections the law imposes upon the owner the absolute duty of cleaning out and repairing annually. Recognizing that in the course of nature, by the action of the running water, and by frosts and falling rains and other natural causes, there must necessarily be within a year more or less disturbance of the ditch from its original condition, the law determines the frequency with which these cleanings shall be made.
The complaint follows the requirements of the statute in this respect, and no more can be demanded.
It is true that in section 1203, Elliott's Supp., there is a proviso "that when it may be shown to the satisfaction of the trustee that there is no necessity for an annual cleaning, he shall not enforce the penalties for non-performance, but in no case shall the work be delayed more than two years." This proviso, however, constitutes matter of defense merely. Primarily, it is the duty of the trustee to see that the ditch is cleaned annually. If any different order was made by him, it devolves upon the defendant to plead and prove it, and this has not been done. State v. Maddox, 74 Ind. 105; Hewitt v. State, 121 Ind. 245, 23 N.E. 83; Teal v. Fonda, 4 Johns. 304; Bliss on Code Pleading, section 202.
It is also suggested that under this statute no lien for these expenses is created which can be enforced by action. We are not favorably impressed with this view of the law.
"In the construction of statutes, the prime object is to ascertain and carry out the purpose of the Legislature in their enactment." City of Evansville v. Summers, 108 Ind. 189, 9 N.E. 81.
"It is a...
To continue reading
Request your trial