Lipes v. Hand

• Decision Date: 27 June 1885
• Citation: 1 N.E. 871,104 Ind. 503
• Parties: Lipes and others v. Hand and others.
• Court: Indiana Supreme Court

104 Ind. 503

1 N.E. 871

Lipes and others

v.Hand and others.¹

Supreme Court of Indiana.

Filed June 27, 1885.

Appeal from Allen circuit court.

Robertson & Harper, for appellants.

T. E. Ellison, for appellees.

Elliott, J.

The appellees, proceeding under the act of April 8, 1881, petitioned for the establishment of a ditch, and their petition was resisted by the appellants. The point first made is that the circuit court had no jurisdiction of the subject-matter, and that its proceedings are void. One reason stated in support of this contention is that the petition seeks to deepen and straighten a river, and that the circuit court has no jurisdiction in such matters. The statute supplies a full answer to this contention, for it expressly provides that natural streams may be straightened, widened, and deepened. Rev. St. 4375. The legislature has power to enact such a statute. Gould, Waters, § 248. Another reason urged in support of this position is that the act of April 8, 1881, is repealed by the act of April 21, 1881. This point has heretofore been decided against the appellants, and we have no doubt as to the soundnessof those decisions. Indeed, the language of the latter statute clearly shows that there was no repeal. Shaw v. State, 97 Ind. 23;Crist v. State, 97 Ind. 389;Buchanan v. Rader, Id. 605; Meranda v. Spurlin, 100 Ind. 380.

It is contended that the circuit court did not select drainage commissioners from six persons nominated by the township trustees, as required by section 4273, and that for this reason the proceedings are void. We do not think this question is presented by the record. The motion to strike out the report on the ground now urged was made at the November term, 1883. No time was then asked or allowed in which to file a bill of exceptions, and none was filed until February, 1885. This was too late to save the question; leave to file a bill should have been asked and obtained during the term. Where persons assume to act under the authority of the court, where there is an order appointing them, and where their acts are approved by the court, it must appear by a proper bill of exceptions that timely objection to their acting was made by the remonstrants, otherwise the rulings of the trial court will be respected.

It appears from the record that no harm resulted to the appellants from striking out some of their causes of remonstrance, and even if it were conceded that this ruling was erroneous, there could be no reversal, for harmless errors will not reverse a judgment. The court had authority to extend the time of filing the report of the commissioners. It is a familiar rule that where a judicial tribunal has a general power to designate a time within which an act shall be done, it may extend the time. Such a power is regarded as a discretionary one, and the exercise of it by the court will not be interfered with unless there has been an abuse of discretion. If the power is limited to a certain time, then, of course, a different rule prevails.

The drainage laws have so often been declared constitutional that the question can no longer be deemed an open one. It is contended that the court erred in refusing appellants a trial by jury. The power of the legislature to provide that in special proceedings the trial shall be by the court, and not by jury, is fully established by the decisions upon the subject. There is, indeed, no contrariety of opinion. Anderson v. Caldwell, 91 Ind. 451; S. C. 46 Amer. Rep. 613; Indianapolis, etc., Co. v. Christian, 93 Ind. 360;Ross v. Davis, 97 Ind. 79.

We have no doubt as to the constitutional power of the legislature to provide for the trial of drainage cases by the court. In support of the contention of the right to a trial by jury, appellants assert that the statute does not deny it upon all causes of remonstrance, and that, conceding the statute to be constitutional, they were nevertheless entitled to a jury. We cannot assent to this doctrine. The statute expressly says that “remonstrances founded on the second, third, fourth, fifth, sixth, seventh, eighth, and ninth causes of remonstrance shall be tried by the court without a jury;” and of the other cause, the first, it says: “If the court be of opinion that the first cause of remonstrance above enumerated exists, it shall direct the commissioners to amend and perfect their report, or the court may, in its discretion, set aside said report.” Acts 1883, 177. This language plainly commits the question to the court, and when the first cause for remonstrance is considered, namely, “that the report of the commissioners is not according to law,” it becomes still clearer that such a question was not intended to be tried by a jury. The law is well settled that the statute in force at the time of the trial governs as to the procedure, and as the act of 1883 was in force when this case was tried, it governed as to the procedure on the trial. The difficult question in the case is as to the rule which shall govern in the assessment of benefits. The language of the statute is very broad. It is this: “They [the commissioners] shall proceed and definitely determine the best and cheapest method of drainage, the termini and route, location and character, of the proposed method, and fix the same by metes and bounds, courses and distances, and description, estimate and cost thereof, assess the benefits or injury, as the case may be, to each separate tract of land affected thereby, and to easements therein held by railway or other corporations.” This language is very comprehensive, and includes every appreciable benefit of a private character to the land-owner; but, broad as it is, we do not think that it can be construed to extend to the general benefits which the land-owner receives as one of the public. Counsel have not referred to any...