Kline v. Bd. of Com'rs of Huntington Cnty.

• Decision Date: 27 October 1898
• Citation: 51 N.E. 476,152 Ind. 321
• Parties: KLINE et al. v. BOARD OF COM'RS OF HUNTINGTON COUNTY.
• Court: Indiana Supreme Court

152 Ind. 321

51 N.E. 476

KLINE et al.

v.BOARD OF COM'RS OF HUNTINGTON COUNTY.¹

Supreme Court of Indiana.

Oct. 27, 1898.

Appeal from circuit court, Huntington county; Robert Lowry, Special Judge.

Action by Henry Kline and others against the board of commissioners of Huntington county. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

B. M. Cobb, for appellants. Whitelock & Cook, for appellee.

JORDAN, J.

This was a proceeding by the board of commissioners of the county of Huntington to reassess lands benefited by the construction of a free gravel road known as the “Huntington and Zanesville Highway.” Proceedings to improve this road were instituted in 1881, under the act of 1877. Rev. St. 1894, §§ 6855, 6856 (Rev. St. 1881, §§ 5091, 5092; Horner's Rev. St. 1897, §§ 5091, 5092). It appears that the original assessment upon the lands benefited amounted to $9,000; and the board of commissioners, under the authority of the above statute, in order to raise money to meet the expenses of the improvement, issued and sold bonds to that amount. After collecting the original assessment, and applying the money arising therefrom to the payment of these bonds and the interest thereon, it appears that said assessment proved to be inadequate to pay all of the expense incurred in the improvement of the highway. Appellants, upon notice, appeared before the board of commissioners, and remonstrated against the levying of an additional tax, and such proceedings were had before the board that viewers were appointed, and an additional assessment was made, and approved and confirmed by the board, from which order an appeal was taken to the circuit court. In the latter court appellants filed an amended remonstrance. By the first paragraph of their amended remonstrance they challenged the right of the board to make a reassessment upon their lands to pay the deficit arising out of the construction of the road, and under the third paragraph they set up that the deficit, for the payment of which the reassessment was proposed to be made, had been paid and satisfied by the county upon the order of the board of commissioners without the request or consent of appellants, and that this payment had been made by the county more than six years before the institution of this proceeding; wherefore it was prayed that the amount be adjudged barred under the six-years statute of limitations. Each of these paragraphs of the remonstrance, on motion of appellee, was struck out, and rejected, and the first contention of counsel in this appeal is that in this ruling the trial court erred. Appellants, in discussing the question sought to be raised by the first paragraph of their remonstrance, contend that the original assessment under the order of the board of commissioners was a final settlement or determination upon the question of benefits accruing to their lands, and that, therefore, the board was precluded from making a second assessment to meet the deficit in the cost of improvement; or, in other words, it is insisted that under the original order of the board the question of an additional assessment is res judicata.

The power or right of the board of commissioners, under the authority of the statute mentioned, to levy an additional assessment upon lands benefited by the improvement of a public road, when the original assessment proves to be insufficient, is no longer an open question, but is one which has been firmly settled by the decisions of this court, subject, however, to the right of any landowner to demand that in no case shall the assessments made upon his land, when considered in the aggregate, exceed the amount of the benefits to the land by reason of the improvement. Board v. Fullen, 111 Ind. 410, 12 N. E. 298;Rogers v. Voorhees, 124 Ind. 469, 24 N. E. 374;Goodwin v. Board, 146 Ind. 164, 44 N. E. 1110, and cases there cited. The contention that the original order of the board is a final adjudication upon the question of reassessment is not tenable, as such question was in no wise at issue in the original...