Higgins v. Swygman

• Decision Date: 13 December 1923
• Docket Number: 24,005
• Citation: 141 N.E. 788,194 Ind. 1
• Parties: Higgins et al. v. Swygman et al
• Court: Indiana Supreme Court

141 N.E. 788

194 Ind. 1

Higgins et al. v. Swygman et al

No. 24,005

Supreme Court of Indiana

December 13, 1923

From White Circuit Court; William Robison, Judge.

Proceeding by Hendrick S. Swygman and others for the construction of a public drain. From an order for the reassessment of benefits on the petition of the construction commissioner, James S Higgins and others appeal.

Reversed.

Palmer & Marvin and L. D. Carey, for appellants.

M. B Beard, for appellees.

OPINION

Ewbank, J.

In July, 1916, certain of the appellees filed in the circuit court of White County, Indiana, a petition asking for the construction of a public drain. The petition was docketed and referred to the drainage commissioners, who made a report which, after being amended and then modified as to certain assessments remonstrated against, was confirmed, on April 28, 1919, by a judgment which ordered "that the improvement as * * * described in said report be and the same is hereby established and ordered constructed and the assessments therein contained as modified are confirmed," and that George A. Thomas "be and is now appointed as drainage commissioner in charge of the construction of said ditch, and is ordered to advertise and let the contract for the construction thereof." Parts of the judgment preceding what we have quoted adjudged that the benefits assessed by the amended report against the lands of nine remonstrants should be reduced in the total amount of more than $ 900. The assessments of benefits thus confirmed exceeded $ 106,000. No appeal was taken by anybody from this judgment and the construction commissioner duly advertised the work of construction, but received no bids within the amount available for use in paying for it under the assessments made. More than five months after the entry of the judgment, and at a subsequent term of court, on October 4, 1919, the said George A. Thomas, naming himself as the commissioner to construct the ditch, filed his petition in the circuit court, which alleged as follows: That the drain had been petitioned for, and the drainage commissioners had laid it out and assessed benefits against the lands described in their report; that such benefits so assessed, after being modified, had been confirmed, and the improvement established and the ditch ordered constructed, as above stated; that he had attempted to let a contract for its construction, but received no bids "for the reason that the cost of labor, fuel, appliances and other materials necessary in the construction of said improvement had so increased in price and in value since the filing of said report that said ditch could not be constructed for the total of the net benefits assessed", but that, in his opinion, "it will cost from $ 155,000 to $ 160,000 to construct said ditch now"; that no part of the ditch had been constructed, and no contract for its construction had been awarded; that the actual benefits to the lands assessed will aggregate more than $ 175,000, and "therefore the benefits to the lands affected should be reassessed, reported to this court, and be made available for the construction of said ditch."

By demurrerrs to the said petition and otherwise, appellants interposed objections to the jurisdiction of the court to order a reassessment of benefits after having confirmed the original assessments and entered a final judgment establishing the ditch and ordering it constructed, even if it were petitioned for by proper parties, and to the right of George A. Thomas, as commissioner in charge of the construction of the proposed improvement, to maintain an action for such relief, all of which objections were overruled, and these rulings are presented for review. Some objections for lack of proper notice were also suggested, but were waived by a full appearance and the resistance of the petition on the merits, and we shall not further consider them.

The statute requires the drainage commissioners to whom a proposed work of drainage is referred to "estimate the cost thereof", as well as to "assess the benefits and damages." And if the report and judgment should be so prepared as to levy assessments for the construction of the drain less in amount than the benefits assessed, and the cost afterward should be found to exceed the estimate on which the assessments for construction were based, but to be within the benefits assessed, there can be no doubt that, upon petition by a party having the required interest, additional assessments could be levied, up to the amount of the benefits assessed. In Murray v. Gault (1913), 179 Ind. 658, 669, 101 N.E. 632, the court said: "We hold that, in proper cases, additional assessments may be made within the limits of adjudged benefits, to secure funds to complete the work of drainage." And if, by reason of changed conditions, the cost of construction and the amount of benefits should both be enhanced before a contract to dig the ditch was let, we have no doubt of the power of the court, upon proper petition and notice, to refer to qualified drainage commissioners the question whether the cost of construction would still be less than the benefits, and to reassess benefits if it were found that they would. Board, etc., v. Fullen (1887), 111 Ind. 410, 12 N.E. 298, 13 N.E. 574; Rogers v. Voorhees (1890), 124 Ind. 469, 471, 24 N.E. 374; Murray v. Gault, supra; McDonald v. State, ex rel. (1914), 181 Ind. 609, 611, 105 N.E. 148.

The statute makes express provision for deepening, enlarging and extending a public drain after its construction, on petition of an owner of lands affected, and notice to other landowners, the cost to be paid from the benefits derived therefrom. § 6174 Burns 1914, Acts 1913 p. 152, § 19; Huffman v. Newlee (1919), 189 Ind. 14 124 N.E. 731; Kilty v. Michael (1921), 190 Ind. 374, 130 N.E. 531. And under some circumstances a new proceeding may be instituted and maintained, on petition of the owners of lands affected and notice to the other landowners, for the construction of a new ditch that will drain part or all of the same territory, together with additional lands outside of the drainage district as originally laid out. Steenburg v. Kyle (1919), ...