Dukes v. Working

• Decision Date: 19 February 1884
• Docket Number: 11,150
• Citation: 93 Ind. 501
• Parties: Dukes v. Working et al
• Court: Indiana Supreme Court

93 Ind. 501

Dukes v. Working et al

No. 11,150

Supreme Court of Indiana

February 19, 1884

From the Miami Circuit Court.

The judgment is affirmed, with costs.

W. E Mowbray and C. R. Pence, for appellant.

J. L Farrar, J. Farrar and W. C. Farrar, for appellees.

OPINION

Howk C. J.

This was a proceeding by the appellant, in the circuit court, under the provisions of the act of April 8th, 1881, concerning drainage. Sections 4273 to 4284, R. S. 1881. On the 16th day of December, 1882, the appellant filed, in the court below, his verified petition, under section 4274, praying for certain drainage described therein. Afterwards, on January 2d, 1883, proof of posting notices of the presentation of such petition, as required in section 4275, having been made by the appellant, the court made an order referring the matter to the commissioners of drainage, and fixing therein the time and place of their meeting, and the time when they should make their report. On the 15th day of January, 1883, the commissioners of drainage made to the court their verified report in the matter of the appellant's petition. Thereupon the appellees, sixteen in number, filed their verified remonstrance against such report, for the following causes: Because they were each assessed too much compared with other lands assessed or benefited; and because the proposed work would neither improve the public health, nor benefit any public highway of the county, nor be of public utility; and because the assessment of benefits to make the proposed ditch greatly exceeded any and all benefits to be derived therefrom.

The matters arising under the remonstrance were heard by the court, and the court found for the remonstrants, that there was inequality in the assessments of benefits, and that it was impossible to equalize such assessments, as there were not lands enough assessed too low upon which the excess of the other assessments could be placed. The court also found for the remonstrants that the amount of the assessed benefits, which was, by the report of the commissioners, equal to the estimated cost of construction, was greater than the actual benefits to all the lands assessed. The appellant excepted to these findings of the court; and over his motion for a new trial the court rendered judgment, dismissing his petition.

The overruling of his motion for a new trial is the only error assigned by the appellant in this court. In this motion the only causes for such new trial were that the finding of the court was not sustained by sufficient evidence and was contrary to law.

It is very doubtful, at least, if the error assigned by the appellant, in this case, is sufficient to present any question for the decision of this court. This is not, in any proper sense, a civil action. It is a special proceeding authorized by the General Assembly for certain well defined purposes. To such a proceeding, none of the provisions of the civil code seem to be applicable, unless made so by the terms of the statute authorizing the proceeding. Hays v. Tippy, 91 Ind. 102; Anderson v. Caldwell, 91 Ind. 451; Indianapolis, etc., G. R. Co. v. Christian, ante, p. 360. By analogy with other statutory...