Forsyth v. Wilcox

• Decision Date: 25 September 1895
• Docket Number: 16,902
• Citation: 41 N.E. 371,143 Ind. 144
• Parties: Forsyth v. Wilcox et al
• Court: Indiana Supreme Court

41 N.E. 371

143 Ind. 144

Forsyth v. Wilcox et al

No. 16,902

Supreme Court of Indiana

September 25, 1895

Petition for Rehearing Overruled December 18, 1895.

From the Porter Circuit Court.

The judgment of the circuit court is affirmed.

T. J Merrifield, for appellant.

J. B Peterson, for appellees.

OPINION

Hackney, J.

This was a proceeding by the appellees for the establishment of a highway. It originated in Lake county, and, upon appeal to the circuit court of that county, the venue was changed to the Porter Circuit Court. In the commissioners' court, the appellant made a general appearance and filed her remonstrance alleging the inutility of the proposed highway and claiming damages. Reviewers were appointed and qualified and reported the proposed highway of public utility, and that the appellant would sustain damages in the sum of $ 2,100.00. Thereupon the board of commissioners ordered the highway to be opened and established after twenty-eight days, upon the condition that the petitioners pay the damages reported in excess of $ 300.00, which sum was ordered paid from the county treasury, in the event of the payment by the petitioner of the additional damages. Before the expiration of said twenty-eight days, the appellant perfected her appeal from the board to the circuit court. In the Porter Circuit Court, the only proceedings had, and which have been reserved, were in the trial of the questions of public utility and damages, which resulted in a verdict finding for "the petitioners and that the highway petitioned for would be of public utility," and further, that "Caroline M. Forsyth is entitled to damages in the sum of $ ." Over appellant's motion for a new trial, the circuit court rendered judgment from which this appeal is prosecuted.

The grounds of error which appellant has assigned are substantially as follows:

1. The board of commissioners of Lake county had no jurisdiction to appoint said viewers under said petition in this: (1) That said petition did not state facts sufficient to authorize such board to make such appointment. (2) That no sufficient notice of the filing of said petition was ever made or proven.

2. That said board had no authority to proceed in the matter of said petition for want of a legal and sufficient report by said viewers.

3. That the order to view was wholly void for want of certainty in the description of the proposed highway.

4. That no reviewers were appointed after the filing of the remonstrances upon the question of public utility.

5. That the proceedings of said board of commissioners were wholly illegal, without jurisdiction and void.

6. The Lake Circuit Court had no jurisdiction in the case.

7. The Porter Circuit Court had no jurisdiction in the case.

8. The court below erred in overruling appellant's motion for a new trial.

9. The judgment of the court below is in violation of the sixty-sixth section of the first article of the constitution of the State of Indiana.

10. The judgment of the court below is in violation of the fourteenth amendment of the constitution of the United States.

The first, second, third, and fourth of said assignments, as suggested upon their face, apply to the proceedings before the board of commissioners, upon which that court assumed jurisdiction of the subject-matter and of the parties, and, upon the argument of counsel, the general assignments numbered five, six and seven are but conclusions from the preceding assigned causes of error. In our opinion all of these assignments must fail, since none of the causes therefor were presented by objection, motion, or otherwise, in the commissioners' court or in the circuit court. Wells v. Rhodes, 114 Ind. 467, 16 N.E. 830; Lowe v. Brannan, 105 Ind. 247, 4 N.E. 580; Forsythe v. Kreuter, 100 Ind. 27; Watson v. Crowsore, 93 Ind. 220; Green v. Elliott, 86 Ind. 53; Daggy v. Coats, 19 Ind. 259; Kemp v. Smith, 7 Ind. 471; Milhollin v. Thomas, 7 Ind. 165.

The petition did not, in the body thereof, allege that six of the petitioners resided in the neighborhood of the proposed road, but that fact, and the fact of the posting of notices of the intended filing of the petition appeared from an affidavit filed with, and as a part of, the petition. The commissioners expressly adjudged that "due proof of the legal qualifications of the petitioners, and of the legal posting of notices," was made. By the cases cited, it is the settled law of this State that questions as to the qualifications of the petitioners, the sufficiency of notice, the formal averments of the petition, and other questions of like character, are waived by the failure of a remonstrant to raise them before the board; that the judgment of the board as to the sufficiency of notice is final, and that only such questions as have been affirmatively put in issue before the board, or such as may be permitted by amendment on appeal, may be tried in the circuit court. The case of Green v. Elliott, supra, fully considers the doctrine of waiver, and cites many of the decisions in this State supporting its conclusions. In the appellant's case, Forsythe v. Kreuter, supra, this court said: "It is settled by the decisions of this court that nothing can be tried on appeal from the board of commissioners to the circuit court except what is put in issue before the board; and it is equally well settled that objections can only be taken to facts upon which the jurisdiction of the board depends, by appearing before the commissioners and making such objections at the time the petition is presented, and before the appointment of viewers. Whether the petition was signed by twelve freeholders, six of whom resided in the immediate neighborhood, etc., was jurisdictional, and the finding of the commissioners on that subject was conclusive."

The hearing afforded, under the law, to landowners, is not designed to permit those interested to make a partial resistance and to remain silent as to errors in the proceeding, which, upon motion, could be corrected, and, when they have taken the chances of success upon their partial resistance, and when the petitioners have been taken to the court of last resort, where such errors cannot be corrected by amendment, but the costs of the entire proceeding must be visited upon them, to then for the first time raise an objection that any such error exists. If such practice were permitted, instead of establishing and promoting a just system of procedure, the rule would constitute an unjust method of delaying public improvement and of burdening with the cost of litigation those who institute such proceedings. None of the defects suggested as to the order to view, as to the report of viewers, nor as to the failure to appoint second reviewers, which we learn from the argument to be the objection raised by the fourth assignment, even if such were authorized, should have passed through the commissioners' court, and the circuit court, and remained unchallenged until they had reached this court, when, by the vigilance of the appellant, they could have been cured in the earliest stages of the proceeding.

As we have shown, the board acquired jurisdiction of the proceeding; the appellant's appearance was general; her only objections were as to the utility of the road and the damages she might sustain; the order establishing the highway contained enough, aside from the condition as to the payment of damages, to fix the location, width, and termini of the road. If there were irregularities in the intermediate proceedings, and the appellant without objection thereto appealed to the circuit court and there again submitted only the questions of utility and damages, such intermediate irregularities should be deemed waived. By the rule that the questions tried before the board are tried de novo in the circuit court, the inquiry of this court is...