Haines v. Trueblood

• Decision Date: 24 April 1918
• Docket Number: No. 9922.,9922.
• Citation: 67 Ind.App. 456,119 N.E. 383
• Parties: HAINES v. TRUEBLOOD et al.
• Court: Indiana Appellate Court

67 Ind.App. 456

119 N.E. 383

HAINES

v.TRUEBLOOD et al.

No. 9922.

Appellate Court of Indiana, Division No. 2.

April 24, 1918.

Appeal from Circuit Court, Madison County; Willis S. Ellis, Judge.

Injunction by Edward V. Haines against William N. Trueblood and others. Judgment for defendants, and plaintiff appeals. Reversed, with instructions.

Kittinger & Diven, of Anderson, for appellant. Arthur C. Call, of Anderson, for appellees.

CALDWELL, J.

Appellant brought this suit to procure a decree enjoining appellees from proceeding further with a certain petition and from filing other petitions for the drainage of lands in Madison county. Judgment that he take nothing, and for costs, was rendered against him by reason of his refusal to plead over on the sustaining of a demurrer to his complaint. It is alleged in the complaint that appellant owns lands that would be affected by the proposed drainage, and that he sues in behalf of himself and also at the request and for the benefit of a large number of other landowners situated similarly to himself and so numerous as to render it impracticable to bring them all before the court.

The complaint covers 12 pages of the transcript. A brief summary of the substantial facts disclosed by it is as follows: Appellee Trueblood owns a 7-acre tract of land in Madison county which drains naturally, and in fact is drained into Fall creek, and which will not be affected or benefited by a drainage system in or along Lick creek. Trueblood and an attorney who represented him as such in all the drainage proceedings hereinafter mentioned fraudulenty confederated together for the purpose of procuring the widening, deepening, and straightening of Lick creek between certain points, under the drainage laws of the state, their purpose being to procure for Trueblood's attorney an allowance of a large amount of attorney fees. The proposed drainage would cost many thousands of dollars, and would affect the lands of 700 landowners who do not want or need the proposed drainage. Trueblood hopes and intends to accomplish his purpose by repeatedly filing other petitions in succession as those theretofore filed are dismissed one by one by reason of the filing of remonstrances under the statute by two-thirds of the landowners affected, and this he declares he will continue to do until the opposing landowners have become weary of the contest, and therefore cease resistance.

July 26, 1913, Trueblood, with others procured by him, filed in the Madison circuit court a petition for the drainage of his said lands, by the dredging, widening, deepening, and straightening of Lick creek between certain points. Within the times fixed by the statute, about 600 landowners of the class authorized by the statute to do so, and being more than two-thirds of such class, filed a remonstrance against the proposed drainage, whereupon petitioners dismissed the petition, and on the same day filed a second petition of like import as the first, to which within the time specified by statute there were filed remonstrances signed by more than 700 qualified landowners, and being more than the two-thirds necessary to procure a dismissal of the petition. Trueblood thereupon having caused a third petition of like nature as the first and second, to be prepared, filed it also, and two days later dismissed the third petition. At this stage of the proceedings this action was commenced. Subsequently a supplemental complaint was filed, alleging among other things, the filing of a remonstrance by appellant and more than 600 other landowners against the drainage proposed by the third petition, the dismissal of the third petition by reason of the remonstrance, and that appellees thereupon filed a fourth petition, the same in substance as those that preceded it.

The complaint contains other averments of facts, to the effect that each of such petitions was fraudulently prepared and filed; that appellees were able to file successive petitions at comparatively small expense to themselves, but that the work of causing successive remonstrances to be prepared, signed, and filed is very expensive to the landowners, both in money and time; that in each of such petitions appellees named only from 20 to 40 landowners as likely to be affected by the proposed drainage, and that with knowledge of the facts they omitted therefrom 600 to 700 other landowners whose lands will be affected by the drainage if accomplished; that said petition in each case was pestiferous, and was not prosecuted to secure drainage, but for the fraudulent, corrupt, and sole purpose of extracting money from landowners to pay said attorney and Trueblood and others a large amount as attorney fees, to be derived from assessments for said improvement, and that the fraudulent and corrupt confederation between Trueblood and his attorney was entered into and is being carried out for that purpose alone, and that each of the petitions was filed for that purpose and for no other or different purpose; that the proceeding is therefore unlawful, wrongful, and oppressive; that by virtue of said confederation and their said fraudulent and successive actions pursuant thereto, Trueblood and his attorney intend to harass and hope to wear out the opposition of the landowners and entail upon them such constantly recurring trouble and expense in remonstrating that eventually they will grow weary and permit the drainage to be accomplished, and that Trueblood declares that he will continue in his said fraudulent and oppressive course until such end is attained; that the proceeding has become pestiferous, wrongful, and oppressive; that in the event of such drainage, Trueblood's assessment will be small, and will be paid out of fees allowed his attorney.

As to appellees other than Trueblood it is alleged that, while not named in the successive petitions as landowners, they signed a statement on a separate page of certain of the petitions, to the effect that they owned certain undescribed lands that would be affected by the proposed drainage, and they therefore prayed that it be established. It is alleged also that they participated in some of Trueblood's alleged fraudulent conduct with knowledge of the facts.

The relief sought by the complaint is that appellees be enjoined from proceeding further with the pending drainage petition, and from filing other petitions for the drainage of Trueblood's lands.

[1] It is alleged, in substance, that the description of the proposed drainage improvement as contained in the successive petitions differed somewhat in termini, but that each and all of the petitions would have directed the attention of the ditch commissioners to the same physical situation, had such petitions been submitted to them for view and report, and that the landowners likely to be affected were practically the same in each case. The fact that such descriptions do differ as indicated is, however, unimportant. While a petitioner for drainage is required to state generally in his petition his belief respecting the best and cheapest manner in which the proposed drainage may be accomplished, such belief so stated is not binding on the drainage commissioners, since they are required, in case they report in favor of the drainage, to determine all questions of termini, route, location, etc., of the proposed work, subject, however, to the ultimate determination of the court in certain particulars. Sections 6141, 6142, and 6143, Burns 1914.

[2] The complaint contains certain averments in the nature of conclusions. These, however, as against demurrer and to the extent necessary to its sufficiency, must be held to be equivalent to the averment of all the facts required to sustain such conclusions. Section 343a, Burns 1914.

The...