Huffman v. Newlee

• Decision Date: 28 October 1919
• Docket Number: No. 23320.,23320.
• Citation: 189 Ind. 14,124 N.E. 731
• Parties: HUFFMAN et al. v. NEWLEE et al.
• Court: Indiana Supreme Court

189 Ind. 14

124 N.E. 731

HUFFMAN et al.

v.NEWLEE et al.

No. 23320.

Supreme Court of Indiana.

Oct. 28, 1919.

Appeal from Superior Court, Delaware County; Robert M. Van Atta, Judge.

Proceedings initiated by petition by Harriett C. Newlee and others for repair of drainage ditch, in which John C. Huffman, and others filed a remonstrance. From an order establishing the proposed work and ordering it to be constructed, remonstrants appeal. Affirmed.George H. Koons and George H. Koons, Jr., both of Muncie, for appellants.

White & Haymond and Omar G. Weir, all of Muncie, for appellees.

LAIRY, C.J.

This is an appeal from a final order made by the superior court of Delaware county in a proceeding for the repair of a drain known as “Schroyer ditch No. 110.” This ditch is located entirely within the county of Delaware and was originally located and constructed under an order of the board of commissioners of that county. The Schroyer ditch as originally established and constructed emptied into White river on the north side thereof and drained lands located to the north of that river. It was an open ditch throughout its entire length of 289 stations of 100 feet each following the general course of a natural water course known as “Mud creek.” After the construction of the Schroyer ditch, the Delaware circuit court, under a petition filed therein, established what is known as the “Christopher Brown ditch” for the purpose of draining that part of the Mud creek basin which lies above the source of the Schroyer ditch. The outlet of the drainage constructed under this petition is in Mud creek at a point 10 feet east and 40 feet south of the source of the Schroyer ditch, and the water carried thereby finds its outlet through the latter ditch, which, at the time of its construction as shown by the special findings of the trial court, was intended to be of sufficient capacity to accommodate such drainage. The Brown ditch at the outlet is 14 inches lower than the bottom of the Schroyer ditch at its source. It consists of two tile drains, one 20 inches and the other 16 inches in diameter having several lateral drains, or tributaries. One of these, known as “tributary No. 6,” which is a tile ditch 10 or 12 inches in diameter, and anothertile drain of about the same capacity, find an outlet into Mud creek at or near the outlet of the Brown ditch. The fall of the tile drainage just mentioned was much greater than that of the Schroyer ditch, and the volume of water carried thereby greatly exceeded the capacity of the latter ditch which afforded the only means of outlet. As a consequence, the lands adjacent to the Schroyer ditch were overflowed by water from the tile drainage above and were thereby rendered unproductive. To remedy this situation, a petition was filed before the board of commissioners of Delaware county for the repair of the Schroyer ditch. To this petition a remonstrance was filed purporting to be signed by two-thirds of the owners of lands affected by benefits or damages, which remonstrance was sustained and the petition dismissed. From the order dismissing the petition, the petitioners appealed to the Delaware Circuit Court, from which the case was transferred to the Delaware superior court, where an amended petition was filed. The remonstrance filed before the board was refiled to the amended petition, and, after a hearing thereon, the same was overruled, and such further proceedings were taken and had in that court as resulted in an order establishing the proposed work and ordering it to be constructed. From the order so made this appeal is taken.

The petition filed before the board of commissioners described the Schroyer ditch as originally constructed, and alleged that said ditch was out of repair, being filled at places with dirt and rubbish, and that said ditch as originally constructed never had been, and was not at the time the petition was filed, of sufficient capacity to properly accomplish the drainage for which it was designed and intended. It further alleged that said ditch could be made sufficient to perform the drainage for which it was designed and intended by making the same wider and deeper throughout its entire length, and by extending the length of said drain a proper distance to procure the proper fall and proper outlet, and by changing the course thereof and by tiling and covering said drain for a distance of 60 rods from its source.

The amended petition filed in the superior court described the Schroyer ditch as originally constructed and also the tile drainage subsequently constructed, which finds its outlet through the Schroyer ditch. It alleged that the Schroyer ditch was inadequate and had been always inadequate to furnish the drainage for which it was intended, and described the condition of the drainage and the adjacent land showing the particular defects which rendered the existing ditch inadequate to accomplish the drainage for which it was intended. It also set out with more particularity than the original petition the changes and alterations necessary in order that the Schroyer ditch might accomplish the drainage for which it was designed and intended. It was alleged that the Schroyer ditch should be extended so as to connect with the outlet of the Brown ditch, and that tile should be extended down the Schroyer ditch a distance of about 60 rods from its source; that the open part of the Schroyer ditch would be deepened and widened from its source to a point about 2,100 feet from its outlet, at which point the course should be changed by abandoning the channel of the old ditch between that point and the outlet and by the construction of an open channel connecting the Schroyer ditch with White river, which is alleged to be only about 160 feet distant from the Schroyer ditch at the point mentioned. It was further alleged that it was necessary to furnish a proper outlet and to provide sufficient fall for the drainage contemplated; that the ditch should be extended down White river for the distance of approximately one mile from the proposed outlet of the Schroyer ditch; and that the same should be constructed by a dredge to a width of approximately 30 feet.

[1] Appellants who were remonstrants before the board of commissioners filed a motion for an order to strike out and reject the amended petition for the reason that the proposed extensions, alterations, and changes, in the course and means of construction, as shown by the facts stated in the amended petition, were not such legitimate repairs and improvements of the Schroyer ditch as could be ordered and made under the provisions of section 6174, Burns' Ann. St. 1914. The motion was based on the proposition that the exclusive jurisdiction to order repairs of the Schroyer ditch was vested in the board of commissioners; that this jurisdiction was invoked by the original petition filed before that body; and that the amended petition, as shown by the facts stated therein, contemplates the construction of a new and independent drain, thus invoking the original jurisdiction of the superior court under the provisions of section 6141, Burns' Ann. St. 1914.

[2] Under the former statutes on the subject of the repair of drains, it has been generally agreed that the repairs contemplated consisted in the restoration of the ditch to its original specifications; and that, in case it was necessary to change the course or to lengthen the ditch or to deepen or widen the channel or to depart from the original specifications in any other way, it was necessary to proceed under some statute providing for the location and construction of original drains. The statute under which this proceeding was brought differs from former statutes providing for the repair of public drains, in that it expressly authorizes departure from the specifications of the ditch as originally constructed so as to make the work sufficient to accomplish the drainage for which it was designed and intended. In order to accomplish such purpose, it is provided that the course of such ditch may be changed or its length extended. It is also provided that an open ditch may be converted into a tile ditch, or that a tile ditch may be converted into an open ditch, or that the capacity of a tile ditch may be changed by increasing the size or the number of the tile, or that any other change may be made which would be of public utility. From an examination of this statute, it is clear that the Legislature intended that the power of the tribunal ordering the repair of an existing drain should not be confined to the restoring of the drain to its original dimensions as shown by the specifications; but that such tribunal, under a proper petition, should have power to order any such changes as would render the work efficient in performing the drainage which the original drain was intended to accomplish. Any change from the original specifications calls for new construction. Whether the new construction be great or small in extent, the statute confers jurisdiction to order it so long as it appears to be necessary to accomplish the drainage originally designed and intended. The statute fixes no other limitation on the extent to which a ditch may be changed or extended in the process of repair, and the court cannot fix such a limitation as a matter of law. Under a repair statute authorizing alterations and extensions of an old ditch in disregard of the original specifications, it is impossible for a court, in a particular case, to determine when changes and extensions cease to be legitimate repairs and become a new and independent work of drainage, so long as the original ditch or any part of it is utilized. It seems to have been the purpose of the Legislature to place no limitation on the alterations and extensions that can be ordered in the repair of an old ditch so long as they are necessary to make such ditch adequate to accomplish the drainage originally intended. As to whether such...