Kunkalman v. Gibson

• Decision Date: 26 May 1908
• Docket Number: No. 20,999.,20,999.
• Citation: 171 Ind. 503,84 N.E. 985
• Parties: KUNKALMAN et al. v. GIBSON et al.
• Court: Indiana Supreme Court

171 Ind. 503

84 N.E. 985

KUNKALMAN et al.

v.GIBSON et al.

No. 20,999.¹

Supreme Court of Indiana.

May 26, 1908.

Appeal from Circuit Court, Noble County; Jos. W. Adair, Judge.

Proceedings by John Kunkalman and others to establish a public drain in which Harlan Gibson and others filed a remonstrance. From a judgment dismissing the proceeding, petitioners appeal. Affirmed.Robt. W. McBride, O. L. Ballou, Wigton & Green, and H. G. Zimmerman, for appellants. Marshall, McNagny & Clugston and John W. Hanan, for appellees.

GILLETT, C. J.

This proceeding was instituted by appellants in the court below to establish a public drain. At the January term, 1904, the proceeding was docketed and drainage commissioners appointed. January 1, 1906, the commissioners filed their report, locating the work and making assessments of benefits, and at the same term appellees filed a plea to the jurisdiction, wherein they sought to show that the work as described in the petition and report would lower certain fresh water lakes of an area greater than 10 acres each. After unsuccessfully demurring to the plea appellants interposed a motion in writing, in which they alleged the fact of the enactment of the statute of March 6, 1905 (Acts 1905, p. 456, c. 157), the holding of this court thereunder in Taylor v. Strayer, 167 Ind. 23, 78 N. E. 236, and that a portion of said work as laid out and proposed to be constructed passed through certain lakes. The motion contained the following prayer: “Now, therefore, the petitioners respectfully ask the court to set aside said final report and remand the same, together with said work, back to the drainage commissioners heretofore appointed in said proceedings, with instructions to revise, reform, and amend their said final report in the matters of the location and construction of main lines, arms, and branches as to terminus, route, location, and character of said work, regardless of the line as in said petition described, and to amend, revise, and reform all assessments of benefits therein as may in their judgment be required and necessary to be made in the location, construction, and prosecution of said work to a successful completion, and so as to conform and comply with the said legislation of 1905 as hereinbefore referred to, and to file an amended report when they, the said drainage commissioners, have completed their said work. And that no part of said work shall be located or established so close to any lake covering 10 acres or more of ground as to lower the water level of the lake, and at no point be nearer than 40 rods of the high-water mark of said lake (excepting only where drains empty into such lakes). All of which matters the court now remands and remits to the judgment and discretion of said drainage commissioners for their action in said proceedings.” This motion was overruled, and after a trial of the matter set up in the plea to the jurisdiction there was a finding for appellees on said plea, and a judgment dismissing the proceeding followed.

Appellants' first contention is that they had such a vested right in the proceeding as rendered it incompetent as to them to repeal the drainage act of 1885 (Acts 1885, p. 129, c. 40) by the act of 1905 above referred to. This question was decided adversely to appellants' contention in Taylor v. Strayer, supra. The whole matter as to the establishment of the drain, the fixing of assessments and the ultimate adjustment of costs was in fieri when the act of 1905 took effect, and we perceive no basis for the claim that appellants were disturbed in any vested right. It is next contended that the act of 1885 was continued in force as to existing drainage proceedings by virtue of sections 243 and 248, Burns' Ann. St. 1901. It was decided otherwise in Taylor v. Strayer, supra. It is plain that the latter section could have no application, and the inapplicability of the former section is equally evident when it is read in the light of the title of the act of which it is a part. The title reads as follows: “An act repealing all former acts of the Legislature except those therein named” (our italics). While it was assumed in some of our earlier cases, without considering said title, that section 243, supra, had such an operation for the future as to save rights vested or suits instituted under acts passed subsequent to the year 1852, yet the title of the act shows that the section had no application to such rights or suits, but that it related to rights and suits under then “existing laws.” We do not find that counsel for appellants make any point under their points and authorities against the sufficiency of the motion to dismiss because of any failure sufficiently to disclose that the petition sought the construction of a drain which would lower or affect fresh water lakes of more than 10 acres. For that reason the point is waived; but considering what is alleged in the petition, and reading it in the light of the facts averred in the motion to dismiss, we do not think that it can fairly be said, in view of the fact that one branch of the...