Johnson v. Lewis

• Decision Date: 20 September 1888
• Citation: 18 N.E. 7,115 Ind. 490
• Parties: Johnson, Surveyor, v. Lewis.
• Court: Indiana Supreme Court

115 Ind. 490

18 N.E. 7

Johnson, Surveyor,

v.Lewis.

Supreme Court of Indiana.

September 20, 1888.

Appeal from circuit court, Posey county; William F. Parrett, Judge.

Action for injunction by Thompson P. Lewis against Thomas J. Johnson, surveyor of Posey county, restraining him from assessing the cost of repairing a ditch upon the land of plaintiff. From a judgment for plaintiff defendant appealed.Ernest Dale Owen and Loudon & Leonard, for appellant. G. V. Menzie and E. M. Spencer, for appellee.

Mitchell, J.

Lewis complained of Johnson in the court below, and charged that the latter, as surveyor of Posey county, had theretofore entered upon the plaintiff's lands, and repaired a certain public ditch, on account of the making of which repairs the defendant had assessed against the plaintiff's lands the sum of $209. The gravamen of the complaint is that the surveyor had made the repairs to the ditch, and assessed the plaintiff's lands as above, without giving any notice whatever of his intention to make the repairs or assessment. This is assumed by the pleader to be an attempt to take or impose a burden or lien upon the plaintiff's land without due process of law. Prayer for an injunction. A demurrer to the complaint having been overruled, and, the defendant refusing to answer, the court gave judgment according to the prayer of the complaint.

Section 10 of the act concerning drainage, approved April 6, 1885, makes it the duty of the county surveyor to keep all ditches which may have been constructed within his county for the purpose of drainage under any law then or theretofore in force in this state, in repair, to the full dimensions as to the width and depth as required by the original specifications, and to certify the cost thereof, including his own per diem, to the county auditor, who is required to draw his warrant to the persons to whom the money is owing. In order to raise the money necessary to reimburse the county treasurer, it is made the duty of the county surveyor to apportion and assess the cost of the repairs upon the lands adjudged by the court benefited by the construction of the ditch, in like proportion as benefits were originally assessed against such lands. He is required to make a record of such assessment, to be kept in his office, open to public inspection, and it is made his duty, within five days after making such assessment, to post up written or printed notices thereof in three public places in each township in which lands are assessed. Any person aggrieved may appeal from the assessment to the circuit court within 20 days from the time such notices are posted. It will thus be seen that the statute does not require nor make...