Kilty v. Michael
| Citation | 130 N.E. 531,190 Ind. 374 |
| Decision Date | 06 April 1921 |
| Docket Number | No. 23468.,23468. |
| Parties | KILTY et al. v. MICHAEL. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Huntington County; Nelson G. Hunter, Special Judge.
Petition by William Michael against Andrew Kilty and others for the repair, change, or reconstruction of an existing drain. From a judgment ordering the drain established and confirming the report of the drainage commissioners and the assessments made therein, the defendants appeal. Affirmed.Bowers & Feightner, of Huntington, for appellants.
George M. Eberhart and Sumner Kenner, both of Huntington, for appellee.
In 1895 the John Young drain was established and constructed, commencing near the center of the southwest quarter of section 26, township 29 north, range 8 east, in Huntington county, Ind., and extending southeastwardly across that section and across sections 35 and 36, a distance of 10,380 feet, and terminating at a highway on the south boundary of section 36, which was also the south boundary of the farm now owned by appellee. From this point the ground sloped toward the southeast, and the water ran along a channel worn by its action to an open ditch a quarter of a mile away. But no drain was established between the highway and the latter ditch. Four thousand feet of the upper end of the drain was tiled; 1,500 feet with 8-inch the, 700 feet with 12-inch tile, and 1,800 feet with 15-inch tile, and 6,380 feet at the lower end was an open ditch. Some of the way this ditch ran between high banks, but at the lower end, where it crossed appellee's farm, the ground was low and flat, and the ditch was not very deep. No arms or laterals of this drain were established by law. But the owners of 300 acres or more lying east of the district originally assessed for the construction of the John Young drain afterward constructed an open ditch flowing into it from the northeast, which drained their lands, and the owners of several other tracts near the public drain laid the emptying into it. It was shown without controversy that sediment which washed down the open part of the ditch filled it up at the lower end, on appellee's farm, and that the ditch overflowed on his farm and drowned out his crops over a considerable area almost every year, but that there was ample fall to a sufficient outlet across the next farm south. In May, 1917, appellee filed a petition signed by himself alone, alleging that he owned certain lands affected by and assessed for the construction of the John Young drain, that it was out of repair and not sufficient properly to perform the drainage for which it was designed and intended, that it was partially an open ditch, and that the high banks along the upper part of such open ditch slid into it and stopped it up, and that there was not sufficient fall at the lower end of the ditch, and that the said John Young drain could he made sufficient to properly perform the drainage for which it was designed and intended, by extending its length, so that a sufficient fall might be had, deepening it so as to give an outlet for all water drainage thereto, running the the farther down the ditch, and using large tile. He named and gave notice to 11 alleged owners of the lands originally assessed for the construction of the John Young drain. On June 9, 1917, the cause was docketed, and on that day 11 owners of lands draining into the old drain which (apparently) were not assessed for its original construction, together with the two owners of the farm below the end of that drain, through which it was proposed to extend it, filed their petition to be made parties, and together with nearly all of the landowners named in the petition, to the total number of 21 owners of lands to be affected by the proposed drain, filed remonstrances stating that they constituted two-thirds of all parties affected by the drainage proceeding, and that they objected and remonstrated against “the construction of said drain,” and asked that the proceeding be dismissed and the petition denied.
At the same time the remonstrators filed an answer to the petition in three paragraphs, of which the first paragraph was a general denial, the second asserted that the old drain “is ample and sufficient to drain all lands *** and the lands *** of all parties concerned,” and the third stated that, if constructed, the drain petitioned for would not be a repair of the old drain, but would be a new drain with branches and laterals by which the lands of said defendants would be affected. A reply in general denial to the second and third paragraphs of said answer was filed. Appellee at the same time filed a motion to strike out the “two-thirds” remonstrance. The cause was then submitted for trial, on the issues joined, on June 30, 1917, and was continued for argument to July 30, 1917, on which date the court found “for the petitioner (appellee) that the facts averred are true, that viewers should be appointed as prayed,” and did appoint drainage commissioners, and ordered that they should proceed to view and inspect the contemplated work and report thereon, and ordered that the cause be continued as to all other matters.
A motion for a new trial was filed by appellants the same day, but the record does not show that this motion ever was ruled on, or that appellants saved any exception in relation to it.
The drainage commissioners filed a report that the proposed repair of said drain was practicable, that it would improve the public health, benefit the public highways, and be of public utility, that the costs, damages, and expenses would be less than the benefits to the lands assessed therefor, and that the best and cheapest method to accomplish such repair work would be to commence at the lower end of the (15-inch) tile, as laid when the drain was originally constructed, and lay tile downstream along the open ditch a distance of 6,184 feet, to a point near where the original drain terminated, at the south boundary of appellee's farm, the tile to be used ranging in size from 16 inches in diameter at the upper end, where it joined the old (15-inch) tile, to 27 inches at the lower end; and thence to construct an open ditch, more than 4 feet deep at the upper end, leading down across a 40-acre tract to an outlet, a distance of 1,316 feet. Nothing was to be done to the upper 4,000 feet of the original drain, which was tiled when the drain was first built. The cost was assessed, not only against all of the lands originally assessed for the construction of the drain, but also against more than 600 acres which had subsequently been made to drain into it by means of open ditches and tile, and also against the 40-acre tract across which the ditch was to be extended, and the 40-acre tracts lying east and west of it, respectively, the three last-mentioned tracts being assessed for $20, $12, and $25, while other assessments upon that amount of land ran as high as $320.
After notice to new parties, the appellants jointly filed a plea in abatement verified by their attorney, stating in substance that the report provided for deepening a large part of the old drain, and putting into the part which had been constructed as an open drain tile larger than were used in the part (at the upper end) originally tiled, and for extending the ditch a quarter of a mile downstream to an outlet, and for assessing the cost against more than 600 acres of additional lands, as well as against all those originally assessed for the construction of the...
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