Honnold v. Endicott

• Decision Date: 30 January 1908
• Docket Number: 21,002
• Citation: 83 N.E. 502,170 Ind. 16
• Parties: Honnold et al. v. Endicott et al
• Court: Indiana Supreme Court

83 N.E. 502

170 Ind. 16

Honnold et al. v. Endicott et al

No. 21,002

Supreme Court of Indiana

January 30, 1908

From Hamilton Circuit Court; Ira W. Christian, Judge.

Drainage proceeding by Cassius L. Endicott, against which Morton S Honnold and others remonstrate. From an order establishing the drain, remonstrants appeal, making additional parties.

Reversed.

Shirts & Fertig, for appellants.

Gentry & Cloe, for appellees.

OPINION

Montgomery, J.

This proceeding was instituted before the Board of Commissioners of the County of Hamilton upon the petition of appellee Endicott for the construction of a drain, not exceeding two miles in length and at a cost not exceeding $ 300, under the drainage law of 1905 (Acts 1905, p. 456, §§ 5622-5635 Burns 1905). The matter was referred to the county surveyor, upon a showing that he was disinterested, and in his preliminary report he found that the following named "landowners" will be affected by the drain to wit, C. L. Endicott, William Price, M. S. Honnold, Barbara Lane, H. C. Lower, Jackson township and Hamilton county. On the date fixed for the hearing appellants Honnold, Price, Lane and Lower filed a remonstrance against the proposed drain, upon the theory that they constituted two-thirds of the "landowners" affected, as shown by such preliminary report, and asked that appellee's petition be dismissed. The remonstrance was overruled by the board, the drain established and ordered constructed, and assessments of benefits made against the lands of appellants and appellee Endicott, and also against Hamilton county for benefits to a free gravel road, and Jackson township for benefits to a public highway. Appellants appealed from the final action of the board to the circuit court, where the cause was submitted for decision upon the remonstrance and an agreement of parties in open court that if Jackson township and Hamilton county are both to be reckoned as landowners affected by the proposed drainage, within the meaning of the law, the remonstrance should be overruled, but if either should not be so reckoned, then the remonstrance should be sustained and the petition dismissed. Final judgment was rendered whereby the remonstrance was overruled, the work established and ordered constructed, the cause remanded to the board for further proceedings, and costs awarded to appellee.

Errors have been assigned in various forms upon the overruling of appellants' remonstrance, failure to dismiss the petition, ordering the work established and constructed, and overruling motions for a new trial.

The precise question for decision is whether the county and the township must be regarded as "landowners" under the two-thirds remonstrance clause of the drainage law of 1905 (Acts 1905, p. 456, § 3, § 5624 Burns 1905).

In the case of Zumbro v. Parnin (1895), 141 Ind. 430, 40 N.E. 1085, it was held by this court that under the drainage law of 1885 (Acts 1885, p. 129, § 9, § 5630 Burns 1901) a township named in the petition as subject to assessment for benefits to a highway, was a landowner, and the trustee of such township, joining with other landowners, should be counted upon a remonstrance by two-thirds of the landowners to effect a dismissal of the petition.

The phraseology of the act of 1905, supra, differs noticeably from that of the act of 1885, supra, but since, in our opinion, the county cannot be regarded as a "landowner," it will not be necessary in the case at bar to determine whether the township is a landowner within the meaning of the law in controversy. Section two of the drainage act of 1905 (§ 5623 Burns 1905) authorizes any owner of lands to be benefited--a township trustee for the purpose of draining a highway or public school ground, the common council of a city and board of trustees of a town for the successful drainage of a city or town--to petition for a drain which will affect the lands of others.

The drainage commissioner or surveyor to whom the matter is referred is required to make a preliminary report, among other things, showing "a description of all lands which will be affected by the proposed drainage, with the names and residence of the owners, if known, and if not, so stating;...