Hays v. Tippy

• Decision Date: 18 October 1883
• Docket Number: 10,352
• Citation: 91 Ind. 102
• Parties: Hays v. Tippy et al
• Court: Indiana Supreme Court

91 Ind. 102

Hays v. Tippy et al

No. 10,352

Supreme Court of Indiana

October 18, 1883

From the Grant Circuit Court.

The judgment is affirmed, with costs.

G. W Harvey, for appellant.

J. L Custer, for appellees.

OPINION

Howk J.

The only question for decision in this case is this: Does the complaint of the appellant, the plaintiff below, state facts sufficient to constitute a cause of action to entitle him to any relief?

The complaint was in form an affidavit, and therein the appellant stated, upon his oath, that he was the owner and in the possession of certain real estate, particularly described, in Grant county; that on the 14th day of September, 1881, the appellees filed, in the court below, their petition, asking for the construction of a ditch to drain the lands therein mentioned; that the court granted the prayer of such petition, and the commissioners of drainage proceeded to view the premises, and, on September 27th, 1881, they made their report, in open court, in favor of the construction of the ditch or drain; that in such report the appellant's lands were reported as benefited in certain named sums, amounting in the aggregate to the sum of $ 128; that the court then ordered the drain to be constructed and the report confirmed; that at the time the report was made and continuously thereafter, until October 4th, 1881, the appellant was quite ill and confined to his house, and unable to look after or see to any business; that on September 27th, 1881, and for four days thereafter, his disease was of such an aggravated and distressing character as to unfit and prevent him from going to look after, remonstrating against the report, or giving directions concerning the same; that if he had not been so prevented by his sickness and disease, he would have remonstrated, within the three days allowed by law, against the report of the commissioners; that appellant's land would be, in no way, benefited by the construction of the drain, so reported by the commissioners, which he would be able to show by competent proof; that appellant's lands were assessed too much, as compared with other lands assessed as benefited, as shown by the report; and that, being so prevented by sickness from remonstrating against the report within the three days allowed by law, appellant would be greatly injured by reason of such assessments, unless he should be allowed to have the report set aside as to him, and be permitted to remonstrate against such report. Wherefore, etc.

Appellees' demurrer, for the want of sufficient facts, was sustained to the foregoing complaint, and, appellant declining to amend, judgment was rendered against him for appellees' costs.

The assessment against the appellant's lands, from which he seeks to be relieved in this action or proceeding, were made under and pursuant to the provisions of "An act concerning drainage," approved April 8th, 1881, Acts 1881, p. 397; sections 4273 to 4284, R. S. 1881. It must be assumed, because the contrary is not shown or claimed, that all the proceedings in which the assessments complained of by appellant were made, were had in strict conformity with the requirements of the statute. In section 4275, R. S. 1881, the commissioners of drainage are required, among other things, to "assess the benefits or injury, as the case may be, to each separate tract of land to be affected" by the drainage. The appellant did not claim that his lands were not affected by the drainage, but he alleged that his lands would be, in no way, benefited by the construction of the drain, and were assessed too much, as compared with other lands assessed as benefited, as shown by the report of the commissioners of drainage.

In section 4276, R. S. 1881, it is provided that "Upon the making of such report to the court, three days shall be allowed to any owner of lands affected by the work proposed to remonstrate against the report; and any such remonstrance shall be verified by affidavit, and may be for any or all" of eight different causes. The fourth of...