Holle v. Drudge, 23454.
| Decision Date | 16 December 1920 |
| Docket Number | No. 23454.,23454. |
| Citation | 190 Ind. 520,129 N.E. 229 |
| Parties | HOLLE et al. v. DRUDGE et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; Nelson G. Hunter, Judge.
Petition for construction of a public tiled drain by Ephriam Drudge and others, opposed by William Holle and others. From a judgment for petitioners, opponents appeal. Affirmed.
Frank O. Switzer and Walter S. Bent, both of Wabash, for appellants.
D. F. Brooks, of Wabash, for appellees.
This case presents for decision the single question whether a circuit court can acquire or have jurisdiction to order the construction of a public ditch or drain extending through or so close to a natural, fresh-water body of water, known in the neighborhood as a “lake,” as to lower its water level, where such “lake” covers less than 10 acres of ground. That question is presented by the record in several different ways, but no other question is presented, or is argued by counsel for the appellant.
The appellees filed a petition for the construction of a public tiled drain, 6,100 feet long. As laid out by the drainage commissioners, about midway of its length, the tile drain was made to pass into and through “Meeks Lake” at a depth of more than 4 feet below where the surface of the water usually stood. The undisputed evidence showed that, at ordinary stages of the water, Meeks Lake covered from 6 to 8 acres of ground; but there was no evidence that it ever covered more than 8 acres. It was a natural body of water, fed by springs and by the flow from a depression between low banks along which the proposed tile drain was laid out. Appellant's contention is that “the lake in question is a fresh-water lake of the state of Indiana,” and that it is unlawful to establish or construct a drain through or within forty rods of “any fresh-water lake,” so as to lower its water line.
At the sixty-fourth session of the Legislature of Indiana, in 1905, two acts were passed, each forbidding the drainage of certain fresh-water lakes, as therein stated. Both of these acts were approved on the same day, March 6, 1905. But one of them contained an emergency clause, and was in force from the date of its approval, while the other did not take effect until the Governor issued his proclamation, on April 15, 1905. The first, which took effect immediately, reads in part as follows:
“Whereas, it is desirable to preserve the fresh-water lakes of the state of Indiana at their established water level and to protect them from danger of being injuriously affected or destroyed by the lowering of the waters thereof by any drains or ditches.
Section 1. Be it enacted by the General Assembly of the state of Indiana, that it shall be unlawful for any person or persons, firm or corporation, to locate, dig, make, dredge, or in any manner construct, or for any court, or board of commissioners, or body of viewers or drainage commissioners, to order or recommend the location, establishment or construction of any ditch or drain cutting into or through, or upon the line of any fresh-water lake or lakes in the state of Indiana, or to locate, dig, make, dredge or in any way construct any ditch or drain, having a bottom depth lower than the present water line of such lake, within forty rods of any point on the line of such lake where the line or any portion thereof is known or ascertainable; or in case such line or any part thereof is lost and cannot be ascertained, within forty rods from high water mark on the margin of such lake, such high water mark to be the highest point on such margin to which such water has arisen within the ten years last past.”
Section 4 imposes a penalty of a fine and imprisonment for violating the provisions of the act.
.
Acts 1905, p. 447, c. 152; Burns' 1914, § 6162 et seq.
The other was “An act concerning drainage,” which in the 14 sections thereof outlined a complete system of procuring the drainage of farm lands, public highways, and public school grounds, by action of the circuit court or board of commissioners, upon the petition of landowners, and repealed all laws previously enacted “in relation to drainage,” with certain specified exceptions, but did not declare an emergency. The repealing section contained a proviso, as follows:
“Provided, further, that such repeal shall not affect or be construed to repeal any other act upon the subject of drainage passed by the present General Assembly.”
The fourth section of this statute also contained a proviso, reading as follows:
“Provided, that such drain shall not be located so close to any lake covering ten acres or more of ground as to lower the water level of the lake, and shall at no point be nearer than forty rods to the high water mark of such lake, ‘excepting only where such drains empty into such lakes.”’
Acts 1905, pp. 456, 462, c. 157, sec. 4.
Two years later a new statute was...
To continue reading
Request your trial