Heick v. Voight

• Decision Date: 01 April 1887
• Docket Number: 12,392
• Citation: 11 N.E. 306,110 Ind. 279
• Parties: Heick et al. v. Voight
• Court: Indiana Supreme Court

11 N.E. 306

110 Ind. 279

Heick et al. v. Voight

No. 12,392

Supreme Court of Indiana

April 1, 1887

From the Porter Circuit Court.

The judgment is affirmed with costs.

H. A Gillett, for appellants.

W Johnston, for appellee.

OPINION

Mitchell, J.

This proceeding was instituted in the circuit court of Porter county, upon the petition of Augustus C. Voight, for the establishment of a ditch. Heick and others appeared and demurred to the petition. After their demurrers were overruled, each filed special answers. These answers were stricken out on the motion of the petitioner. The appellants then filed separate remonstrances, upon which a trial was had, the court finding the facts specially, and stating conclusions of law thereon, adverse to the remonstrants.

The only objection which is urged to the complaint is, that it fails to comply with section 1 of the act of March 8th, 1883 in that it omits to state generally the method by which it is believed the proposed drainage can be accomplished in the cheapest and best manner.

The act of 1883 requires that the petition shall contain, among other essentials, a statement such as that above referred to. After describing certain lands which it is alleged belong to the petitioner, and which would be benefited by drainage, the petition recites that such drainage "can not, however, be accomplished in the best and cheapest manner, without affecting the lands of others." The averment follows that the petitioner "believes that such drainage can be best had and effected by a ditch commencing," etc. Then follows a general description of the proposed work, and the manner of accomplishing the drainage of the several tracts of land described. All the other essential averments are found in the petition, which follows the form prescribed in section 4284, R. S. 1881.

It would be a narrow and illiberal construction of the statute, to hold that the petition was insufficient. Section 4280 requires that the act be liberally construed to promote the drainage of wet and overflowed lands.

The answers which were stricken out by the court were filed before the matter was referred to the commissioners of drainage. These answers were pleas of former adjudication in respect to some parts of the proposed drain, and in respect to other parts, that the work was impracticable and more comprehensive than was necessary, in order to effect the drainage of the petitioner's lands, and that its cost would exceed the benefits to be derived therefrom. No such issues as those tendered by the answers, if allowable at any stage of the proceedings, are contemplated by the statute, until after the report of the drainage commissioners has been made. Section 2 of the act of 1883 provides that after the petition is docketed, land-owners shall have three days in which to file any demurrer, remonstrance or objection to the form of the petition, or as to why the commissioners of drainage, or any one of them, on account of their interest in the proposed work, or kinship to any persons whose lands are to be affected thereby, should not act in the matter.

Questions which relate to the subjects enumerated above are the only ones that can be raised, after an appearance to the proceeding, and before the report of the commissioners has been received. Until then, no issue involving the merits can be tendered or tried. The statute does not contemplate two trials upon issues of fact, in one case. The answers stricken out did not present any question relating to the subjects enumerated. They were, therefore, properly rejected.

After the commissioners' report has been made, remonstrances may be filed. The statute prescribes definite and particular grounds of remonstrance. Some of the answers presented as a bar to the proceedings grounds of objection which are not specified as grounds of remonstrance. The grounds of remonstrance can not be enlarged by answers filed before the report of the commissioners is made. No provision is made for pleading a former adjudication. It is, therefore, to be inferred that the Legislature did not intend that one failure to secure the drainage petitioned for should bar all future attempts, if the petitioner was willing to run the hazard of paying the costs, in case such subsequent efforts failed of success.

The next ground upon which a reversal is asked involves the propriety of the conclusions of law stated by the court upon the facts found.

The only facts found by the court which are involved in the question presented for consideration are, that it was practicable to accomplish the proposed drainage without incurring an expense exceeding the aggregate benefits to result therefrom.

It is further found that the proposed work will not improve the public health, but that it will benefit two public highways of the county, and that the improvement of such highways will be of no peculiar or special benefit to the appellants. It is found that the assessments made and confirmed against the appellants' lands respectively are based upon benefits to accrue to such lands from the construction of the ditch, and not from the improvement of the highways.

It is also found that the proposed work will render more valuable and productive some five hundred or six hundred acres of marsh land.

Among other conclusions of law, the court stated that the improvement of the several public highways, and the benefits to the lands described, were such public purposes as to justify the several assessments of benefits against the lands of the appellants.

The appellants' argument against the validity of the foregoing conclusion proceeds upon the theory that the statute which authorizes assessments of benefits against the lands of an individual, for the construction of a drain, when the only public benefit to be derived therefrom is the improvement of one or more public highways, and which improvement of the highways is of no special benefit to the individual, is unconstitutional.

It is said that there is in this State a uniform rule of taxation for road purposes by townships, to which all persons and property are subject, and that if a ditch assessment is to be enforced upon the sole ground of an improvement of a road, then whatever land is assessed for the ditch must contribute twice to the burden of improving the highway. The force of this reasoning, as applicable to proceedings for drainage purposes, is not perceived.

Assessments for the construction of a drain are not enforced on the ground...