Ginn v. Hinton

• Decision Date: 02 June 1910
• Docket Number: No. 21,554.,21,554.
• Citation: 91 N.E. 1093,174 Ind. 296
• Parties: GINN v. HINTON et al.
• Court: Indiana Supreme Court

174 Ind. 296

91 N.E. 1093

GINN

v.HINTON et al.

No. 21,554.

Supreme Court of Indiana.

June 2, 1910.

Appeal from Circuit Court, Delaware County; J. G. Leffler, Judge.

Proceeding by Grant C. Hinton and others against Liberty Ginn for the construction of a drainage ditch. From a judgment dismissing respondent's remonstrance on his appeal from a like order of the board of county commissioners, he appeals. Reversed and remanded.

Orr & Orr, for appellant. J. Walter Gray and Omar G. Weir, for appellees.

HADLEY, J.

This is a proceeding under section 17 of the act of 1907 (Acts 1907, p. 508) and section 6151, Burns' Ann. St. 1908, by appellees for the construction of a ditch wholly within Delaware county, less than two miles in length, and alleged to cost not to exceed $300, exclusive of tile. The county surveyor, to whom the auditor had referred the petition, filed his favorable report in the auditor's office on April 19, 1909, in form and substance as required by law, in which it was shown that an assessment of benefits of $196 had been made against the lands of appellant. On April 20, 1909, the petitioners served upon appellant a formal notice that said report had been filed and would be heard by the board of commissioners on the 5th day of May, 1909. On May 5, 1909, appellant appeared pursuant to said notice and filed a remonstrance on statutory grounds defined in section 4 the act of 1907, being section 6143, Burns' Ann. St 1908. To this remonstrance appellees filed their motion to strike the same out, for the following reasons: (1) Because it was not filed within 10 days after the filing of the surveyor's report, exclusive of Sundays and the day of filing. (2) Because it was not filed within 10 days after notice was served on said remonstrator, exclusive of Sundays and the day of service of said notice. The board sustained appellees' motion to strike out the remonstrance, and appellant appealed to the circuit court, where the same motion was refiled and resustained, and cause dismissed and remanded back to the commissioners, with instructions to proceed with the construction of the drain as provided by law.

Was it error in the court to dismiss appellant's remonstrance? We think it was. Appellees' motion to strike out appellant's remonstrance and the arguments relating to the same center in the provisions of section 3 of said act of 1907, being section 6142, Burns' Ann. St. 1908, which relates generally to the construction of drains. But under the view we have taken of the question the general provisions of section 6142, relating to notice, time of filing, and hearing of report, and remonstrances, have no application to a special proceeding begun and prosecuted under section 17 of said act of 1907 (section 6151, Burns' Ann. St. 1908). It is clear enough that the Legislature intended by section 6151, supra, to provide a cheaper, simpler, and speedier proceeding for the construction of less important drains. Its provisions apply only to drains, located wholly within the county, less than two miles in length, including all arms, and which will cost not exceeding $300 exclusive of the tile.

It is enacted in said section 6151 that when it is desirable to contract such a drain as has just been described, the petitioners, instead of applying to the circuit or superior court as provided in a former section of the act, may apply therefor by petition to the board of commissioners of such county at any regular monthly session of said board, and all provisions hereinbefore made as to such petition, notice of hearing, reference to the drainage commissioners, remonstrances and exceptions thereto, action on report, and all other matters relating to such work, shall be had and concluded as far as applicable by and under the direction of such board of county commissioners, as hereinbefore in this act provided for, in the circuit or superior court, except as provided for in this section, that is to say, the procedure in the construction of the smaller class of drains shall be the same as that provided for the general class, except as otherwise provided in said special proceedings. The requirements in the special proceeding under section 6151, applying to the petition, reference and the filing, notice and hearing of the report and remonstrances, are distinctly and radically different from the requirements of section 6142, and must be complied with, without reference to the procedure prescribed in other sections of the act.

In the latter or general statute it is provided that 20 days' notice of the filing of the petition and the day for docketing the same must be given those named in the petition as affected by the proposed drain, and any person named in the petition as the owner of land shall have 10 days, exclusive of Sunday and the day for docketing, after such docketing, to file with the court any remonstrance or objection, and after said 10 days have elapsed the court shall consider the remonstrance-that is, upon the expiration of 10 days after the docketing, the door of the court is closed against a remonstrance by any one named in the petition-and if no remonstrance has been filed the court must refer the petition to the drainage commissioners, who must in season report to the court upon the feasibility of the work, and also set forth any lands they find will be affected by the improvements which are not mentioned in the petition.

With respect to the report of the drainage commissioners, it is provided in said section 6142 that, in all cases where lands named in the report are not named in the...