Kaufman v. Alexander

Decision Date25 May 1909
Docket NumberNo. 21,339.,21,339.
PartiesKAUFMAN v. ALEXANDER et al.
CourtIndiana Supreme Court

173 Ind. 136
88 N.E. 502

KAUFMAN
v.
ALEXANDER et al.

No. 21,339.1

Supreme Court of Indiana.

May 25, 1909.


Appeal from Circuit Court, Huntington County; J. R. Day, Special Judge.

Petition by Roscoe A. Kaufman for the construction of a drain, in which Charles W. Alexander and others filed remonstrances. From a judgment denying relief, the petitioner appeals. Affirmed.

[88 N.E. 503]


R. A. Kaufman and C. W. Watkins, for appellant. W. A. Branyan, W. D. Hamer, H. B. Spencer, D. V. Whiteleather, and B. E. Gates, for appellees.

HADLEY, J.

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, c. 40), 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 having been overruled, the petition was, on September 30, 1904, 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 remonstrance 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 land 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, which being overruled, he filed seven affirmative paragraphs of reply, to each of which appellees successfully demurred for want of facts. These several rulings gave 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 damage resulting from the construction of the proposed drain, and, if the second proviso in section 3 of the drainage act of 1907 (Acts 1907, p. 512, c. 252) 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 had 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...

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