Kaufman v. Alexander
| Decision Date | 25 May 1909 |
| Docket Number | 21,339 |
| Parties | Kaufman v. Alexander et al |
| Court | Indiana Supreme Court |
Rehearing Denied November 16, 1909.
From Huntington Circuit Court; John R. Day, Special Judge.
Drainage proceeding by Roscoe A. Kaufman, against which Charles W Alexander and others remonstrate. From a judgment for remonstrants, petitioner appeals.
Affirmed.
C. W Watkins and R. A. Kaufman, in pro. per., for appellant.
W. A. Branyan, W. D. Hamer, H. B. Spencer, D. V. Whiteleather and B. E. Gates, for appellees.
On March 3, 1904, appellant filed in the office of the clerk of the Huntington Circuit Court his petition for the construction of a drain under the drainage act of 1885 (Acts 1885, p. 129), as subsequently amended. The sufficiency of the petition was assailed both before and after the docketing, which occurred on May 12, 1904.
On May 21, 1904, 351 persons, claiming to be the owners of land described in the petition, filed a remonstrance or motion to dismiss the petition, which was overruled. Divers other remonstrances, motions and objections were overruled, and on September 30, 1904, the petition was referred to the drainage commissioners.
October 2, 1906, the drainage commissioners made their report on the petition, locating said proposed drain, and assessing benefits to 495 people, 480 of whom resided in Huntington and Whitley counties.
On November 9, 1906, Levi Bonebrake and 350 associates refiled their remonstance and motion to dismiss the proceeding that was filed and overruled under date of May 21, 1904. On motion of appellant, the same was again overruled.
Issues were formed on the commissioners' report, and the hearing thereof continued from time to time, and on April 17, 1907, 372 persons, who were owners of lands affected by the construction of said drain, filed in said proceeding a written remonstrance against said commissioners' report, and against the construction of said drain. To this remonstrance appellant filed a demurrer for insufficiency of facts, upon the overruling of which he filed seven affirmative paragraphs of reply, to each of which appellees successfully demurred for want of facts. These several rulings give rise to the questions presented for our consideration.
It is shown by the record that those who signed the remonstrance of April 17, 1907, constituted more than two-thirds of all the persons affected by any assessment, or whose lands were damaged by the construction of the proposed drain; and, if the second proviso in section three of the drainage act of 1907 (Acts 1907, p. 508, § 6142 Burns 1908) is valid, we perceive no reason why the judgment of the circuit court should not be affirmed. The proviso referred to reads as follows: "Provided, that in cases pending at the time of taking effect of this act where a two-thirds remonstrance has not been filed, such remonstrance may be filed to the report of the drainage commissioners, except in cases pending on petition filed under the act of the General Assembly of the State of Indiana, entitled 'An act concerning drainage,' approved March 6, 1905." The court below held the proviso effective, and that it entitled the remonstrants to a dismissal of the proceeding.
The act of 1907, supra, is the result of a public agitation of the subject of drainage laws. It purports to provide a new and complete system. It repeals "all laws and parts of laws heretofore enacted in relation to drainage." Pending cases may be concluded, but must be concluded under the new law, and not under the old, except proceedings begun under the act of 1905 (Acts 1905, p. 456, §§ 5622-5635 Burns 1905). Manifestly, the whole subject was before the legislative mind--not only the rights, remedies and procedure to be granted to future litigants, but also those to be substituted for litigants whose proceedings were then pending and in fieri.
It is well to bear in mind that the law containing the proviso heretofore quoted repealed the law under which this proceeding was begun, without any saving provision other than the right to conclude pending cases under the provisions of the new law. In other words, all rights and remedies awarded by the old law were extinguished by its repeal. Taylor v. Strayer (1906), 167 Ind. 23, 119 Am. St. 469, 78 N.E. 236; State, ex rel., v. Helms (1894), 136 Ind. 122, 133, 35 N.E. 893; Rupert v. Martz (1888), 116 Ind. 72, 76, 18 N.E. 381.
The right to enter upon another's land and dig ditches for drainage is unknown to the common law. The right is purely statutory. The legislature may grant it, and take it away, at will. That body may also prescribe, modify and substitute the terms and conditions of its enjoyment. There is no doubt of the legislative power to give to those who are called upon to bear the cost of such an improvement the right to discontinue it at any time while the same remains in fieri; and, upon the repeal of a statute, there is no doubt of the power to extend to persons, affected by the proceedings pending on such repealed statute, remedies different in order from those allowed to parties to be affected by future proceedings.
Appellant insists that the record shows that there had been two remonstrances, signed by two-thirds of the landowners affected by the proposed drain, previously filed in this case, and...
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