Heick v. Voight

Citation11 N.E. 306, 110 Ind. 279
Case DateApril 01, 1887
CourtSupreme Court of Indiana

110 Ind. 279
11 N.E. 306

Heick and others
v.
Voight.

Supreme Court of Indiana.

April 1, 1887.


Appeal from circuit court, Porter county.


H. A. Gillett, for appellants. Wm. Johnston, for appellee.

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 opposed, and demurred to the petition. After their demurrers were overruled, each filed special answers. The answers were stricken out on the motion of the petitioner. The appellants 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 8, 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

[11 N.E. 307]

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 “cannot, 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, Rev. St. 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 adjudications 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 person whose lands are to be affected thereby, shall 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 on trial. 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 commissioner's report has been made, remonstrances may be filed. The statute provides 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 cannot 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...

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38 practice notes
  • Pennsylvania Co. v. Cole, 8,923.
    • United States
    • D. Indiana
    • 10 Octubre 1904
    ...the owner has received a personal and pecuniary benefit by the improvement, which the citizens do not share in common. Heick v. Voight, 110 Ind. 279, 11 N.E. 306; Lipes v. Hand, 104 Ind. 503, 1 N.E. 871, 4 N.E. 160; Chamberlain v. Cleveland, 34 Ohio St. 551; Stuart v. Palmer, 74 N.Y. 183, 3......
  • Shields v. Pyles , No. 21,750.
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Octubre 1912
    ...the city or town. Pavey v. Braddock (1907) 170 Ind. 178, 84 N. E. 5;Kemp v. Adams (1904) 164 Ind. 258, 261, 73 N. E. 590;Heick v. Voight, 110 Ind. 279, 11 N. E. 306. The proposition presented by the remonstrance is that in 1901 a ditch had been established by the board of commissioners betw......
  • City of Globe v. Willis, Civil 1400
    • United States
    • Supreme Court of Arizona
    • 20 Febrero 1915
    ...sum assessed against it, and that the owners have received peculiar benefit which the citizens do not share in common. Heick v. Voight, 110 Ind. 279 [11 N.E. 306]; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; Hammett v. Philadelphia, 65 Pa. 146 [3 Am. Rep. 615]; Chamberlain v. City of Cle......
  • Bemis v. Guirl Drainage Co., No. 22543.
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Junio 1914
    ...Ind. 206;Wishmier v. State (1884) 97 Ind. 160;Ross v. Davis (1884) 97 Ind. 79;Anderson v. Baker (1884) 98 Ind. 587;Heick v. Voight (1887) 110 Ind. 279, 11 N. E. 306; Zigler v. Menges, supra; Perkins v. Hayward (1890) 124 Ind. 445, 454, 24 N. E. 1033;Poundstone v. Baldwin (1896) 145 Ind. 139......
  • Request a trial to view additional results
38 cases
  • Pennsylvania Co. v. Cole, 8,923.
    • United States
    • D. Indiana
    • 10 Octubre 1904
    ...the owner has received a personal and pecuniary benefit by the improvement, which the citizens do not share in common. Heick v. Voight, 110 Ind. 279, 11 N.E. 306; Lipes v. Hand, 104 Ind. 503, 1 N.E. 871, 4 N.E. 160; Chamberlain v. Cleveland, 34 Ohio St. 551; Stuart v. Palmer, 74 N.Y. 183, 3......
  • Shields v. Pyles , No. 21,750.
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Octubre 1912
    ...the city or town. Pavey v. Braddock (1907) 170 Ind. 178, 84 N. E. 5;Kemp v. Adams (1904) 164 Ind. 258, 261, 73 N. E. 590;Heick v. Voight, 110 Ind. 279, 11 N. E. 306. The proposition presented by the remonstrance is that in 1901 a ditch had been established by the board of commissioners betw......
  • City of Globe v. Willis, Civil 1400
    • United States
    • Supreme Court of Arizona
    • 20 Febrero 1915
    ...sum assessed against it, and that the owners have received peculiar benefit which the citizens do not share in common. Heick v. Voight, 110 Ind. 279 [11 N.E. 306]; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; Hammett v. Philadelphia, 65 Pa. 146 [3 Am. Rep. 615]; Chamberlain v. City of Cle......
  • Bemis v. Guirl Drainage Co., No. 22543.
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Junio 1914
    ...Ind. 206;Wishmier v. State (1884) 97 Ind. 160;Ross v. Davis (1884) 97 Ind. 79;Anderson v. Baker (1884) 98 Ind. 587;Heick v. Voight (1887) 110 Ind. 279, 11 N. E. 306; Zigler v. Menges, supra; Perkins v. Hayward (1890) 124 Ind. 445, 454, 24 N. E. 1033;Poundstone v. Baldwin (1896) 145 Ind. 139......
  • Request a trial to view additional results

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