Honnold v. Endicott

• Decision Date: 30 January 1908
• Docket Number: No. 21,002.,21,002.
• Citation: 83 N.E. 502,170 Ind. 16
• Parties: HONNOLD et al. v. ENDICOTT et al.
• Court: Indiana Supreme Court

170 Ind. 16

83 N.E. 502

HONNOLD et al.

v.ENDICOTT et al.

No. 21,002.

Supreme Court of Indiana.

Jan. 30, 1908.

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Proceedings before the board of commissioners by Cassius L. Endicott and others, petitioners, to have a drain established, against which Morton S. Honnold and others, landowners, remonstrate. From a judgment in favor of plaintiff petitioners, defendants appeal. Reversed, and petition dismissed.

Shirts & Fertig, for appellants. Gentry & Cloe, for appellees.

MONTGOMERY, J.

This proceeding was instituted before the board of commissioners of Hamilton county 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. 471, c. 157, § 9. 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 the township of Jackson and the county of Hamilton 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 appellant's 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. In the case of Zumbro et al. v. Parnin et al., 141 Ind. 430, 40 N. E. 1085, it was held by this court that under the drainage law of 1885 (Laws 1885, p. 129, c. 40; section 1192, Elliott's Supp; section 5630, Burns' Ann. St. 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 others should be counted upon a remonstrance by two-thirds of the landowners to effect a dismissal of the petition. The phraseology of the statute of 1905 differs noticeably from that of the act of 1885; 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 or not the township is a “landowner” within the meaning of the law...