Huff v. Fetch

• Decision Date: 13 May 1924
• Docket Number: 24,231
• Citation: 143 N.E. 705,194 Ind. 570
• Parties: Huff et al. v. Fetch et al
• Court: Indiana Supreme Court

143 N.E. 705

194 Ind. 570

Huff et al. v. Fetch et al

No. 24,231

Supreme Court of Indiana

May 13, 1924

From LaGrange Circuit Court; James Story Drake, Judge.

Drainage proceeding by Lewis Fetch and others against William Perry Huff and others. From a judgment establishing the drain, the defendants appeal.

Affirmed.

Foster & Foster, Deahl & Deahl and O. L. Ballou, for appellants.

Dunten & Dunten and Luke H. Wrigley, for appellees.

OPINION

Gause, J.

The appellees instituted this proceeding before the board of commissioners of LaGrange county, to establish a public drain in said county.

Said proceeding was appealed to the LaGrange Circuit Court and, in that court, on May 8, 1922, the appellants filed a verified pleading which they called an answer or plea in abatement and in which it was alleged that said court had no power to proceed further or order said proposed drain established, for the reasons, as therein alleged, that the proposed drain would empty into a fresh water lake of more than ten acres in area and was to be constructed by cutting through the bank of said lake. It is alleged in said pleading that said ditch will drain 3,000 acres of land and empty the same into said lake. That there is a high bank to said lake where the proposed drain will empty into the same and it is proposed to cut through said bank with said drain, and that said drain will finally wash an opening ten feet in depth and fifty feet in width in said bank. That said drain is to be constructed with its bottom about three feet above the water-level of said lake, but that, because of the fall in said drain, the bottom will become washed out until it will be lower than the water level in the lake and within 160 rods of said lake. It is alleged that said proposed drain so constructed will be contrary to chapter 103 of the Acts of the General Assembly of 1921, Acts 1921 p. 257, § 6162 et seq. Burns' Supp. 1921.

The appellees' demurrer to this pleading was sustained. There was a judgment establishing said drain and appellants have appealed therefrom. The only error discussed by appellants relates to the action of the court in sustaining the demurrer to said pleading.

Appellants in said pleading, denominated an answer or plea in abatement do not allege that the proposed drain will lower or in any manner affect the water-level of said lake, and the question for decision is whether it is unlawful to construct a drain which will empty into a fresh water lake in this state when such drain will neither lower, nor affect in any way, the water-level thereof.

Appellants claim that by the provisions of chapter 103 of the Acts of 1921 (Acts 1921 p. 257, supra) it is unlawful to cut through the banks of a fresh water lake to make a channel for a drain, and that it is not material whether the effect will be to change the water-level of such lake.

Appellees claim that said statute does not apply to a drain which empties into such lake, but only prevents the construction of any drain which will have the effect of lowering the water-level of the lake.

The act of 1921 is not an original act, but is amendatory of sections 1 and 3 of chapter 152 of the acts of 1905 (Acts 1905 p. 447). Said act of 1905 had the following title, "An act to preserve the fresh water lakes of the State of Indiana at their established level and protect them from danger of being injuriously affected or destroyed by the lowering of the water thereof and providing penalties for violation thereof and declaring an emergency." Said act also had a preamble, 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."

The first section of said act of 1905 (Acts 1905 p. 447) was as follows: "Section 1. 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 can not 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."

The amendatory act of 1921 (Acts 1921 p. 257, supra) made no change in said section of the original act except to make the distance 160 rods instead of forty rods that any ditch with a bottom lower than the water-level of the lake could be constructed.

Section two of the act of 1905, (Acts 1905 p. 447) which is still in force and unamended, reads as follows: "Sec. 2. That it shall be unlawful for any person or persons, firm or corporation, to cut into or around, or to attempt to cut into or around, or in any manner interfere with, or attempt to interfere with, change or destroy, any dam, bank or levee already constructed, or which, under the laws of this state may hereafter be constructed for the purpose of maintaining the level of the waters of such lake at their established level, or to cut into or through, or attempt to cut into or through, or in any way interfere with, or attempt to interfere with, the banks or shores of any such lake or any part thereof in such a way as to lower or tend to lower the waters of such lake."

Section three of the act of 1905 (Acts 1905 p. 447) was as follows: "Sec. 3. That it shall be unlawful for any person or persons, firm or corporation to interfere with, change or alter, or attempt to interfere with, change or alter any bank, dam, spillway, outlet or outlets of such lake in such manner as to lower the existing level of such lake or lakes."

The act of 1921 (Acts 1921 p. 257, supra) amended said section three to read as follows: "Section 3. That it shall be unlawful for any person or persons, firm or corporation, or for any court, or board of commissioners, or body of viewers or drainage commissioners to interfere with, change or alter, or attempt to interfere with, change or alter any bank, dam, spillway, outlet or outlets of any fresh water lake or lakes in the State of Indiana, or to dig or dredge, or in any way lower, or attempt to lower any outlet or part of outlet to any such lake at any point in such outlet within two hundred and forty (240) rods of any such lake."

It is appellants' contention that under this section as amended, it is unlawful to change or alter any bank of any such lake for any purpose, and that it is immaterial whether such change or alteration will have any effect upon the water-level or not. The original of this section, as set out above, contained the provision that no such work should be done, "in such manner as to lower the existing level of such lake or lakes", and this provision is left out of the section as amended in 1921 (Acts 1921 p 257, supra). We think, however, that if we consider the whole act, including the title and preamble, as well as other laws relating to the same subject, the conclusion will...