Indianapolis & Cumberland Gravel-Rd. Co. v. State ex rel. Flack

• Decision Date: 21 January 1886
• Citation: 4 N.E. 316,105 Ind. 37
• Court: Indiana Supreme Court
• Parties: Indianapolis & Cumberland Gravel-Road Co. v. State ex rel. Flack, Com'r, etc.

105 Ind. 37

4 N.E. 316

Indianapolis & Cumberland Gravel-Road Co.

v. State ex rel.Flack, Com'r, etc.

Supreme Court of Indiana.

Filed January 21, 1886.

Appeal from Marion circuit court.

W. F. Elliott, for appellant.

A. B. Cole, for appellee.

MITCHELL, J.

This is an appeal from a judgment and decree of the Marion circuit court. The judgment was for the amount of an assessment of benefits, growing out of the establishment of a ditch. The decree foreclosed a lien on the appellant's right of way, and ordered the sale of a specified portion thereof to satisfy the judgment.

The first error assigned brings in question the ruling of the court in overruling the appellant's demurrer to the complaint. It is argued that the act concerning the drainage of lands makes no provision for giving notice of the petition and proceedings to the owners of easements in lands, and that, as the appellant's right of way, against which the benefits were assessed, was nothing but an easement, the assessment upon which the suit was predicated was unauthorized. The statute under which the assessment in question was made provides how lands affected shall be described in the petition. It also provides for the assessment of benefits and injuries to easements held in lands, by railway or other corporations. It also provides the manner of giving notice to persons interested, by prescribing that notices shall be posted in the several townships in which the lands described in the petition are situate. We think the provision which requires notice of the petition to be posted in three public places in each township in which the lands described in the petition are situate, provides a manner of giving notice to all persons or corporations owning lands thus described, and that such notice applies as well to those who own easements in land as to those who own any other interest or estate therein. The statute provides a means of giving notice of the proceedings to all having lands, or easements or other interest in lands, which are subject to assessment, and which are sufficiently described in the petition for the establishment of the ditch. As the appellant's easement or right of way was subject to assessment, we must presume, as against a collateral attack, that its interest in its right of way was properly described in the petition, and, as the law provides for notice to all whose lands or interest therein are described, we must further presume that proper notice was given. Young v. Wells, 97 Ind. 410;Jones v. Cardwell, 98 Ind. 331;Baltimore & O. R. Co. v. North, 103 Ind. ---; S. C. 3 N. E. Rep. 144.

An answer filed by the appellant presents, as a defense to the collection of the assessments sued for, that the ditch, as the same is being constructed by the commissioner who has the work in charge, does not conform to the plans and specifications filed, or to the ditch as described in the report of the commissioners, or the order of the court. It is averred, moreover, that the commissioner does not intend to build such a ditch as that described and ordered, and that he has departed widely from the specifications in various particulars; that the commissioner cannot and does not intend to finish the ditch; that he has abandoned the construction of about 500 feet of the work, at one end of the ditch, as proposed and laid out; and that, by reason thereof, the water will be poured into another ditch of inadequate capacity, and will be backed on and over the defendant's road, to its damage in a much larger sum than the amount of its assessment. The court sustained a demurrer to this answer, and this ruling is assigned as error.

It is true, as counsel for appellants forcibly contends, that in a statutory proceeding affecting the property of the citizen the statute must be substantially pursued, and that any material variance from the course of procedure therein prescribed vitiates the proceedings, when properly brought in question. Merritt v. Village of Portchester, 71 N. Y. 309;Combs v. Etter, 49 Ind. 535. This doctrine is peculiarly applicable to the proceedings prescribed in the location and establishment of the ditch in the first instance. The irregularities and departures set up in the answer do not pertain to the proceedings. They are not challenged. The omissions and departures which are relied on as a defense relate to the conduct and purposes of the commissioner who has the construction of the ditch in charge. As it seems to us, the rule stated has no application to the facts relied on as a defense. The drainage commissioner, while he is constructing the work, is under the control and direction of the court, and it is provided in the statute that he must obey such direction, subject to the penalty of being dealt with as for a contempt, or of being removed by the court, and subjected to damages on his bond. The remedy, therefore, is to apply to the court, and, through its order and intervention, secure the due execution of the work. The proceeding establishing the ditch and assessing benefits having been regularly taken, payment of assessments may be enforced, and it will be no answer, in such a case, to assail either the...