Davis v. Lake Shore & M.S. Ry. Co

• Decision Date: 14 April 1888
• Citation: 16 N.E. 639,114 Ind. 364
• Parties: Davis, (Co. Treas.,) v. Lake Shore & M. S. Ry. Co
• Court: Indiana Supreme Court

114 Ind. 364

16 N.E. 639

Davis, (Co. Treas.,)

v.Lake Shore & M. S. Ry. Co

Supreme Court of Indiana.

April 14, 1888.

Appeal from circuit court, De Kalb county; R. W. McBride, Judge.

Action for injunction, brought by the Lake Shore & Michigan Southern Railway Company against John L. Davis, treasurer of De Kalb county. Judgment for plaintiff, and defendant appeals.J. E. Rose and W. H. Dills, for appellant. John H. Baker, (George C. Greene and O. G. Getzen-Danner, of counsel,) for appellee.

Elliott, J.

The appellee's complaint seeks relief by injunction against an assessment for the cost of repairing a ditch, levied by the county surveyor under the provisions of section 10 of the act of April 6, 1885. The constitutionality of that statute has been affirmed in several recent decisions, and we do not deem it necessary to again discuss that question. Weaver v. Templin, 14 N. E. Rep. 600, (December 28, 1887;) Trimble v. McGee, 14 N. E. Rep. 83, (November 19, 1887;) Fries v. Brier, 111 Ind. 65, 11 N. E. Rep. 958; State v. Johnson, 105 Ind. 463, 5 N. E. Rep. 553; Ingerman v. Noblesville Tp., 90 Ind. 393.

It is argued by the counsel for the appellee that the complaint is good, although section 10 of the act of 1885 is valid. We quote from their brief their statement of the points upon which they rely, and the parts of the complaint which they assume states the material facts constituting a cause of action entitling their client to the relief prayed. “Without copying the complaint at large,” say counsel, “we beg leave to state what we conceive to be the principal grounds on which its sufficiency is maintainable: (1) The complaint shows that the ditch or drain, which the surveyor sold the contract for cleaning out, was wholly on and within the railway's right of way; that it belonged to it, and was its private property; that the company's right of way, including the ditch or drain, was occupied and used by it; and that the use and enjoyment of the whole right of way was necessary to it in the conduct of its business. This phase of the complaint goes on the theory that the legislature cannot grant, or, rather, has not attempted to grant, to the county surveyor the authority to invade the franchise and right of way dedicated to the railway company, and to deprive such company of the control and enjoyment of its right of way. (2) The complaint further shows that the amount of $132.60, pretended to be assessed by the surveyor against the appellee for cleaning out the ditch, was not apportioned and assessed upon the lands adjudged by the court benefited by the construction of the ditch, in like proportion as benefits were assessed against the lands for the construction of the work. The complaint discloses that no benefits were assessed, but a given number of feet of said ditch was allotted to the appellee to construct by digging out the bottom of an old drain on the appellee's right of way. The surveyor pretended to fix the value of the work so allotted; and on the amount so arbitrarily fixed by him, and not on the amount of benefits adjudged by the court for the construction of the ditch, he pretended to make the assessment of $132.60 against the appellee for the cleaning out of the ditch on the company's right of way. (3) The complaint shows that the surveyor never posted up any written or printed notices of his pretended assessment in any place or places in the township where the lands assessed were located, and that the surveyor never posted or gave any notice of his pretended assessment as required by law. (4) The complaint also shows that the surveyor never made out any certified copy of the pretended assessment as made by him, nor did he ever file any such certified copy of the assessment with the auditor of the county in which said proceedings were had; but the assessment of $132.60, threatened to be collected by appellant by levy and sale of the appellee's property, was extended on the tax duplicate by the auditor without any warrant of law whatever. There are other grounds set forth in the complaint sufficient to constitute a cause of action, which will not escape the attention of the court, but we shall content ourselves with a discussion of the four grounds above stated.”

The first position assumed by counsel we regard as clearly untenable. The ditch had been constructed, and we must presume rightfully constructed, so that the question is not as to the authority of the officer to enter upon the appellee's right of way for the purpose of constructing a ditch, but the question is as to the authority of the surveyor to collect an assessment for the repair of a ditch rightfully constructed. The original proceedings are not assailed, and we must assume that what was done was rightful and legal. If the ditch was constructed under due authority of law, then the appellee, like any other land-owner, must pay its proportion of the cost of maintaining the ditch. Whether the ditch could rightfully have been located upon the appellee's right of way was a question for the court in the original proceeding, and it cannot be successfully made in a collateral attack upon an assessment levied for the cost of repairing it. The adjudged cases, indeed, establish the rule that a collateral attack upon the original assessment will be unavailing; and surely it must be so here, where the assault is upon an independent proceeding which proceeds upon the theory that the ditch was lawfully established and constructed. We think it clear that, after this lapse of time, the appellee cannot be allowed to impeach the right of the officers to locate and construct the ditch upon its property. Muncey v. Joest, 74 Ind. 410, and cases cited; Flora v. Cline, 89 Ind. 208;Peters v. Griffee, 108 Ind. 121, 8 N. E. Rep. 727, and cases cited; Taber v. Ferguson, 109 Ind. 227-231, 9 N. E. Rep. 723; Prezinger v. Harness, ante, 495, (March 29, 1888;) Ross v. Stackhouse, ante, 501, (this term.) It would be unjust to permit a property owner, whatever the nature of his property, to stand by without objection, and allow the construction of a ditch, and subsequently either attack the validity of the proceedings, or refuse to bear the share of the cost of maintaining it which the law...