Love v. Jones

• Citation: 127 N.E. 549,189 Ind. 390
• Decision Date: 25 May 1920
• Docket Number: 23,409
• Parties: Love et al. v. Jones et al
• Court: Indiana Supreme Court

127 N.E. 549

189 Ind. 390

Love et al. v. Jones et al

No. 23,409

Supreme Court of Indiana

May 25, 1920

From Madison Circuit Court; B. H. Campbell, Special Judge.

Proceedings by Horace E. Jones and others for the repair of a drain wherein Joseph F. Love and others filed answer. From a judgment sustaining a demurrer to the answer, the latter parties appeal.

Affirmed.

Elliott & Houck, for appellants.

Arthur C. Call and Robert McLain, for appellees.

OPINION

Lairy, J.

This is an appeal from a judgment in a proceeding for the repair and reconstruction of the Horace E. Jones ditch. The record shows that the original Horace E. Jones ditch was established and constructed many years ago under orders of the Madison Circuit Court, made in a proceeding brought for that purpose under the statute in force at that time. The drain as originally established and constructed had its source in Madison county and its outlet in Grant county, about two and one-half miles of its length being in Madison county, and about five miles of its length being in Grant county. The portion of this ditch constructed in Grant county extended in a general northeasterly direction, following the channel of Big Deer creek to the confluence of Big Deer creek and Little Deer creek, near the south line of section 23 township 23 north, range 7 east, in Grant county, Indiana.

In 1894, subsequently to the construction of the Jones ditch, a proceeding was commenced in the Grant Circuit Court for the location and construction of a new ditch known as the Big Deer creek ditch, located throughout its entire length in Grant county. This ditch as located and constructed, under such proceedings, had its source in the Jones ditch at a point about fifteen feet north of the line between Grant and Madison counties, and extended along the line of the Jones ditch to the lower end thereof, and thence down the channel of Big Deer creek to a point near the center of section 11 in the same township and range.

The proceeding which resulted in the judgment from which this appeal is taken was filed in Madison Circuit Court on November 29, 1915. The proceeding was instituted under the provisions of § 6174 Burns 1914, Acts 1913 p. 152, which provides that a petition may be filed for the repair of a public drain, or any part thereof, in which it shall be alleged that such drain, or any part thereof, being out of repair, "is not sufficient to properly perform the drainage for which it was designed and intended, and that it can be made sufficient and perform the drainage for which it was designed and intended, by tiling and covering, or by increasing the size or number of the tile thereof, or by increasing the size or number of the tile and changing the course, or extending the length thereof, or by removing the tile and converting the drain into an open ditch, or by making any other change therein which would be of public utility." The section provides that the proceedings shall be instituted in the court which had jurisdiction of the proceeding under which the ditch to be repaired was originally constructed, or, if the ditch was originally constructed under the orders of a board of county commissioners, the proceedings to repair shall be taken before the board of commissioners of the county in which the original proceedings were had.

The part of the Jones ditch described in the petition as needing repair and reconstruction commenced in Madison county at the source of that ditch as originally constructed, and extended along the line of such ditch to a point in Grant county about fifteen feet north of the Madison county line at the source of the Big Deer creek ditch, as constructed in the proceedings to which reference has been made in a former part of this opinion.

The Madison Circuit Court assumed jurisdiction of the proceeding to repair the ditch as described in the petition. The petition was placed on the docket, and viewers were appointed as provided by § 6142 Burns 1914, Acts 1907 p. 508, § 3, to whom the petition was referred, with directions to make and file a report in accordance with the provisions of said section.

The report later filed by the commissioners so appointed provided for the repairs of the part of the Jones ditch described in the petition, but extended the work of repair over and along the course of the Big Deer creek ditch in Grant county for a distance of about five miles to the point of outlet of the Jones ditch as originally constructed. It thus appears that the repairs to be made, as a whole, covered the entire course of the original Jones ditch, the greater part of which was located in Grant county and had been reconstructed as the Big Deer creek ditch, under proceedings of the Grant Circuit Court. The lands of appellants located in Grant county were assessed with benefits by the report. Such lands were not described in the petition as benefited, but appellants were served with notice for the first time after the report was filed, as provided in § 6142, supra. Appellants filed no remonstrance to the report of the viewers within the time allowed for such purpose by the provision of § 6143 Burns 1914, Acts 1907 p. 508, § 4, but, after the expiration of the time so allowed, they appeared and filed an answer by which they sought to challenge the power of the court to order the repairs and improvements as described in the report on the ground of a want of jurisdiction in the court. The specific grounds on which this challenge was based were that the greater length of the ditch to be repaired, as shown by the report, was located in Grant county, and included five miles in length of the Big Deer creek ditch, which had been located and constructed under proceedings of the Grant Circuit Court. Appellants take the...