Lake Shore & M.S. Ry. Co. v. Clough

• Decision Date: 03 July 1914
• Docket Number: No. 21942.,21942.
• Citation: 105 N.E. 905,182 Ind. 178
• Parties: LAKE SHORE & M. S. RY. CO. et al. v. CLOUGH et al.
• Court: Indiana Supreme Court

182 Ind. 178

105 N.E. 905

LAKE SHORE & M. S. RY. CO. et al.

v.CLOUGH et al.

No. 21942.

Supreme Court of Indiana.

July 3, 1914.

On petition for rehearing. Petition overruled.

For original opinion, see 104 N. E. 975.John A. Gavit, of Hammond, and Addison C. Harris, of Indianapolis, for appellants. John H. Gillett, of Hammond, Ralph W. Burns, and Frank B. Pattee, of Crown Point, for appellees.

ERWIN, J.

It is earnestly insisted by appellants in their petition for a rehearing that this court erred in holding that the Porter circuit court had jurisdiction of the subject-matter of this proceeding, by reason of the provisions of section 6141, Burns 1914, which reads as follows:

“Whenever any owner or owners of any separate and distinct tract or tracts of land lying outside of the corporate limits of any city or town in this state, *** shall find it necessary for the successful drainage of any such lands, *** may apply for such drainage by petition filed in duplicate to the circuit or superior court of the county in which the lands of the petitioner or petitioners are situated.”

If this were the only provision of the statute as to the jurisdiction of drainage proceedings, the contention of appellants might be sustained; but this same section contains the proviso:

“That when any such proposed drain will run into two or more counties, or on the county line dividing two counties, the circuit or superior court of the county having the greatest length of said proposed ditch shall have jurisdiction of said work.”

These several provisions of the statute must be construed together.

We are of the opinion that where a proposed drain affects lands in two or more counties, that the petition must be filed in the county having the greater length of the proposed drain, whether the petitioners therefor were the owners of lands in that county or not, if their lands would be affected by the proposed drainage.

It is evident that the Legislature anticipated just such a condition as is presented in this case, and, to save any question as to jurisdiction, made the later provision to this section.

The Porter circuit court had jurisdiction of the petition as presented, even though the petitioners had no lands in Porter county.

Petition for rehearing is overruled.