Fagan v. Royer

• Decision Date: 10 October 1963
• Docket Number: No. 30113,30113
• Citation: 193 N.E.2d 64,244 Ind. 377
• Parties: James W. FAGAN, Appellant, v. John L. ROYER et al., Appellees.
• Court: Indiana Supreme Court

Page 64

193 N.E.2d 64

244 Ind. 377

James W. FAGAN, Appellant, v. John L. ROYER et al., Appellees.

No. 30113.

Supreme Court of Indiana.

Oct. 10, 1963.

Paul Reed, Knox, Thomas Essex, Winamac, for appellant.

Harold R. Staffeldt, Winamac, for appellees.

JACKSON, Judge.

This is an appeal from a judgment of the Pulaski Circuit Court in a drainage proceedings. A petition for drainage filed in the Pulaski Circuit Court instituted the action. On March 16, 1960, the court appointed the county Surveyor, A. M. Van Meter, as engineer and also appointed two men, Lee Sommers and Ernest Daily, to act as viewers. The report of the engineer and viewers was favorble to the proposed drainage project, and included the character of the work, the estimated costs and benefits, and a schedule of assessments.

Remonstrances were filed and hearings had thereon, following which the Surveyor filed a supplemental report in which he overruled the objections or remonstrances of Ruth M. Brown and James W. Martin, deleted from the proceedings certain lands of Arnold Bonnell and Florine Bonnell, and increased the acreage and assessment, with their consent, of Vincent Jones and Alma Jones, and added to the assessment and benefit roles of the project and lands of Cris Frazier and Hazel Frazier. The supplemental report contains the statement:

'The entire Royer branch was by agreement of all parties deleted it appearing that at this time expenses of construction were to [sic] great.

'Accordingly said report is modified but in all other respects confirmed.

'Said original report is filed herewith and made a part hereof by reference.'

On May 4, 1960, James W. Fagan filed his remonstrance to the 'Report of Viewers and Engineer and the County Surveyor', and to the 'Surveyor's Supplemental Report', such remonstrance alleging in substance:

1. That remonstrator is the owner of certain lands therein designated.

2. That his land is affected by the proposed drainage project although the same does not appear on the list of owners and land, exhibit D with said 'Report of Viewers, etc.'

3. That the petition originally filed prays construction of a new drainage system including "that said open ditch be so constructed as to deepen the same by at least two feet,' as appears in rhetorical paragraph No. 5 thereon; that the reports to which this remonstrance is directed do not propose to comply with said petition as to the item specified herein * * *'

4. That the present system of drainage is inadequate in the following particulars:

a. That it fails to drain away excess rainfall, resulting in extensive crop losses to this petitoner and others;

b. That it requires frequent repair because its banks regularly cave in;

c. That it is progressively damaging a county road along the north side of Section 11 because of bank caving in;

d. That its failure to drain away excessive rainfall has regularly resulted in backing up and standing water in the basement of the home of said Thomas A. Fagan on the lands hereinabove described.

5. That prior to a dozen years ago or more the present drainage system followed a different course from the present course below the outlet of the tile which drains remonstrator's lands, and prior to said change the lands of this remonstrator were properly and adequately drained.

6. That said reports are defective in that they fail to provide for adequate and proper drainage below the outlet of remonstrator's lands.

7. That it will not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits as assessed.

8. That the proposed work will nither improve the public health, be of public utility, nor benefit any public highway.

Thereafter, on May 5, 1960, said remonstrant filed an amended remonstrance to the proposed project which alleges:

'1. That he is, with Thomas A. Fagan and Mary K. Fagan, the owner of the South one-half of Section (1), Township 29 North, Range 2 West, excepting therefrom the Northwest Quarter of the Northwest Quarter of the Southwest Quarter of said Section 1, which is owned solely by the said Thomas A. Fagan and Mary K. Fagan.

'2. That the said South half of Section One, with such exception, is affected by the drainage proposed to be constructed by said reports, although the same does not appear on the list of owners and lands, Exhibit D. with the said 'Report of Viewers, etc.'

'3. That the petition originally filed herein prays construction of a new drainage system, including 'that said open ditch be so constructed as to deepen the same by at least two feet,' as appears in Rhetorical Paragraph No. 5 thereon; that that [sic] the reports to which this remonstrance is directed do not propose to comply with said petition as to the item specified herein in that part of the said ditch which will run through Section 11 of said township along the course of the existing Jacob Purdy Ditch, known also as Mud Creek.

'4. That the present system of drainage is inadequate in the following particulars, to-wit:

'a. That it fails to drain away excess water, resulting in extensive crop losses to this petitioner and others;

'b. That it requires frequent repair because its banks regularly cave in;

'c. That it is progressively damageing a county road along the north side of Section 11 (Indian Creek Township) because of bank caving in;

'd. That its failure to drain away excessive water has regularly resulted in backing up and standing of water in the basement of the home of the said Thomas A. Fagain [sic] on said lands.

'5. That prior to a dozen years ago or so, the said present drainage system followed a different course from the present course below the outlet of the time [sic] which drains remonstrator's lands, and prior to said change the lands of this remonstrator were properly and adequately drained, for which reason this remonstrator knows that such drainage can be provided, but which restoration is not contemplated either by going to the formal channel or deepening, as petitioned, of the present channel.

'6. That said reports are defective in that they fail to provide for adequate and proper drainage below the outlet of remonstrator's lands by deepening said ditch sufficiently, installation of pilings or lowering of high banks to prevent cave in, or by changing of the course to provide proper fall and outlet through said Section 11.

'7. That it will not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits as assessed.

'8. That the proposed work will neither improve the public health, be of public utility, nor benefit any public highway.

'9. That the proposed work as decided upon and reported by the surveyor will not be sufficient to properly drain the land to be affected.'

Another remonstrance was filed by Thomas A. Fagan and nine other persons to the 'Report of Viewers etc.' and to the 'Surveyor's Supplemental Report.'

Trial was had to the court on the remonstrances resulting in a finding 'for the remonstrators on their respective remonstrances that the report of the Engineer and Viewers is not according to lwa and should be referred back for correction or amendment.' Accordingly the report was referred back and the Engineer and Viewers were directed to file their new or amended report by Monday, September 12, 1960.

On October 4, 1960, the Engineer and Viewers filed their amended report, including therein appellant's land and assessing the sum of $5,640.00 against such lands.

To the amended report appellant, on October 18, 1960, filed a verified motion to strike; the motion was sustained; the amended report filed on October 4, 1960, was stricken and time to file the amended report ordered filed on September 12, 1960, was extended to November 10, 1960.

On November 10, 1960, the Engineer and Viewers refiled their amended report. To this amended report appellant again remonstrated. Trial was thereafter had to the court on this remonstrance, resulting in a finding and judgment by the court on December 30, 1960, that the report be referred back to the Engineer and Viewers for the preparation and filing of an amended report providing changes in specifications, profile and certain assessments. The court fixed the time for the filing of such amended report as on or before January 10, 1961.

On January 10, 1961, the Engineer filed what purports to be the Engineer and Viewers newly amended or second amended report herein.

To the purported newly amended report the appellant filed a remonstrance on January 18, 1961, alleging therein:

'1. That he is, with Thomas A. Fagan and Mary K. Fagan, the owner of the South one-half of Section One (1), Township 29 North, Range 2 West, excepting therefrom the Northwest Quarter of the Northwest Quarter of the Southwest Quarter of said Section 1, which is owner solely by the said Thomas A. Fagan and Mary K. Fagan, a part of which is affected by the proposed drainage herein.

'2. That the report of the surveyor is not according to law in the following particulars, to-wit:

'a. The Court has hertofore referred said report back to the viewers and engineer with instructions to amend said report fo that it would conform to law, but that such report has never been amended in any respect which might remove any legal error either by way of correction or addition.

'b. That the report as refiled on January 10, 1961, is not re-executed by the viewers and engineer, and the supplemental affidavit or certificate filed therewith on said date is signed by the engineer only and not by the viewers.

'c. The engineer and viewers did not in the course of preparing such reports estimate the benefits to be received by any ot the lands ivolved in the proposed drainage area, and in particular the lands of the remonstrator, but merely divided the anticipated cost of the project among the lands; that they failed to consider and to determine whether the total cost would exceed the total benefits and that the assessments of...