Lake Erie & W.R. Co. v. Smith

• Decision Date: 14 June 1894
• Docket Number: 9,049.
• Citation: 61 F. 885
• Parties: LAKE ERIE & W.R. CO. v. SMITH et al.
• Court: United States Circuit Court, District of Indiana

61 F. 885

LAKE ERIE & W.R. CO. v. SMITH et al.

No. 9,049.

United States Circuit Court, D. Indiana.

June 14, 1894

Miller Winter & Elam, W. E. Hackedorn, and John B. Cockrum, for plaintiff.

M. E Forkner, for respondents.

BAKER District Judge.

This is a bill for the purpose of enjoining Robert Cluggish, as drainage commissioner of Henry county, Ind., and F. J. Smith contractor, from constructing a ditch known as 'Big Buck Creek Ditch,' located in portions of the counties of Henry and Delaware, in said state, in the manner in which they are engaged and threatening to construct the same. The complainant alleges that the defendants are engaged in the construction of a ditch, employing therefor a heavy dredging machine, which floats in the water of said stream, and, by means of engines and machinery, it is used for the purpose of digging out and deepening the said stream. It is alleged that the complainant is a railroad company, engaged in interstate traffic and in carrying the United States mails, and that the construction of the ditch by means of said dredging machine will require the removal of a portion of the bridge of said company which has been constructed over and across said stream, and that, by means thereof, the use of the railroad as a common carrier will be interrupted, and it will be put to large expense in rebuilding said bridge.

Upon the filing of this complaint, a temporary restraining order was issued until a further hearing could be had. Afterwards on the 4th day of June, 1894, the defendants moved the dissolution of the temporary restraining order, and filed a number of affidavits in support of their motion. It is shown by the defendants that on the 10th day of November, 1891 Elisha Clift and others filed their petition in the circuit court of Henry county, Ind., for the establishment and construction of a ditch or drain under and pursuant to the provisions of an act of the legislature of the state approved April 6, 1885. The work contemplated the straightening, widening, and deepening of a stream and water course known as 'Buck Creek' for a distance of about 14 miles, commencing in the northern part of Henry county, and extending north and west near the city of Muncie, and ending about 2 1/2 miles west of Muncie, and some 3 or 4 miles from where said stream empties into White river. That along the line of said ditch there are in the neighborhood of 100 landholders, or more, who would be affected by the same, and from 500 to 800 tracts of land would be affected thereby. That said landholders, including the complainant in this suit, were made parties to this proceeding, and due notice was given and served upon them of the time of the docketing of said petition, as required by law. That, at the proper time for the hearing of said petition, the same was heard by the circuit court of Henry county, and was referred, as required by law, to the drainage commissioners of said county. That thereupon the said drainage commissioners, having met at the time and place required in the order of reference, proceeded to locate the proposed work, and to determine the nature and character thereof, and to make the proper specifications and estimates in all respects as required by law, and proceeded to view and determine the amount of benefits and damages that would arise to each tract of land and roadway affected thereby, including the right of way of the complainant which the proposed ditch crosses in the bed of said stream, a short distance south of Muncie, in Delaware county. That afterwards, on the 26th day of April, 1892, said drainage commissioners filed in the court their report in writing, as required by law, showing the commencement, terminus, and course of said ditch, together with full and accurate specifications of its size, depth, and grade, the estimated cost of the same, and the amount of benefits and damages to each tract of land affected thereby, among which there were assessed to the complainant in this case benefits to the amount of $225, and no damages. That on ...