McKee v. Hasler, 28689

• Decision Date: 09 May 1951
• Docket Number: No. 28689,28689
• Citation: 229 Ind. 437,98 N.E.2d 657
• Parties: McKEE et al. v. HASLER et al.
• Court: Indiana Supreme Court

Page 657

98 N.E.2d 657

229 Ind. 437

McKEE et al. v. HASLER et al.

No. 28689.

Supreme Court of Indiana.

May 9, 1951.

Gray & Waddle, Petersburg, Fred Dobbyn, Washington, for appellant.

Hastings, Allen & Hastings, Washington, for appellee.

BOBBITT, Chief Justice.

This action arises under ch. 223 of the Acts of 1907, as amended by ch. 249 of the Acts of 1947, and particularly the sections thereof which are §§ 27-802 to 27-807, inclusive, Burns' 1948 Repl.

Appellees, Lee B. Hasler and seventy-four other landowners whose lands are subject to overflow from the west fork of White River, filed their petition under the provisions of said sections on March 3, 1949 for the construction of a levee on the east bank of said river. The petition described and gave the names of owners of more than 6,703 acres of land lying east of the west fork of said White River and located in Daviess, Knox and Greene Counties. Applicable provisions of the federal law for the purpose of obtaining federal aid with which to pay the actual costs of the construction of the levee were accepted by the petitioners. No objections or exceptions were filed to the petition. Due notice of the filing of the petition and the date of the hearing thereon was given, and at the end of twenty days after the date set for hearing the court appointed Commissioners in the manner provided by statute. The Commissioners qualified and filed their preliminary report on May 25, 1949, which report was subsequently amended by the Commissioners.

On June 13, 1949 appellants, Raymond S. McKee and one hundred and thirty-four other persons who were not named in the Commissioners' preliminary report filed seventy-five intervening petitions. Seventy-four of said intervening petitions contain identical allegations in substance as follows: (1) that the preliminary report filed by the Commissioners and Engineer does not set forth a description of the real estate owned by the intervening petitioners and described in Exhibit 'A' of their petitions as being real estate affected by the said proceedings; (2) that the real estate described in each of said intervening petitions will be affected and greatly damaged by the construction of the proposed levee; and (3) that the said intervening petitioners are interested in the subject matter of the proceedings and may be adversely affected by any judgment rendered, and that they are necessary parties to the proceedings.

The court approved all of said intervening petitions and made the signers thereof parties to the proceedings. Appellant and others who claimed that their land would be damaged by the construction of the proposed levee then filed a pleading entitled: 'Objections and Exceptions and Petition to Require Preliminary Report to be Amended and Corrected', and alleged therein, among other things, that certain lands not named in the preliminary report would be damaged by the construction of the proposed levee; that the preliminary report was defective and insufficient in that it did not contain all of the names of persons who owned real estate which would be affected by the construction of the proposed levee; and asked the court to direct the Commissioners and Engineer to amend and correct the preliminary report by including therein a description of the real estate described in Exhibit 'A' attached to said objections and exceptions, together with the names and residences of the owners of said real estate.

Appellant and two hundred and one other persons, ninety-one of whom were named in the Commissioners' preliminary report, also filed remonstrances to the proposed construction and alleged therein that the proposed levee was not practicable and would not be sufficient properly to protect the lands affected thereby, that it would not improve the public health or be of public utility, and would not benefit any public highway or grounds in either of the three counties through which the proposed levee would run.

After hearing by the court at which both sides presented evidence, the court entered an order overruling the pleading entitled: 'Amended Objections and Exceptions and Petition to Require Preliminary Report to be Amended and Corrected', and overruled the remonstrance of appellant and others, to which rulings appellant and other intervening petitioners and remonstrators excepted. The court then referred the petition back to the Commissioners and directed them to proceed with their work and make their final report as provided by law, and fixed a date on or before which said final report should be filed. From these orders appellants, Raymond S. McKee and other objectors, exceptors and remonstrators appealed to this court under the special statutory right of appeal granted in § 2 of the Levee Act.

Appellants set out twenty-two separate Assignments of Errors, numbers one, two, twenty-one and twenty-two of which are waived and they will not be considered. The remaining errors assigned, in effect, are: (1) the court erred in overruling the pleading entitled: 'Amended Objections and Exceptions and Petition to Require Preliminary Report to be Amended and Corrected'; (2) the court erred in overruling the remonstrance of appellants and other remonstrators; and (3) the court erred in excluding certain evidence offered by appellants and others. (Assigned Errors Nos. 8 to 19, inclusive).

Appellants contend that the phrase 'lands affected thereby' as used in § 27-802 Burns', and more particularly as used in the second specification for the Commissioners' preliminary report and which specification is as follows: 'Second. A description of all lands which will be affected by the proposed levee, with the names and residences of the owners, if known, and if not, so stating;' means any lands either on the protected or the unprotected side of the proposed levee which may be damaged by reason of the standing and overflow of river waters thereon, including any lands which may in any way be damaged as the approximate result of the construction of the proposed levee, as well as any lands which may be benefited thereby, and that such persons as may be so damaged should be included in the second specification of the Commissioners' preliminary report in order that they may participate and be counted among the two-thirds of the landowners named in the report who may stop the proceedings by remonstrance.

Appellees' position on this question is that the lands which will be affected means protected lands or lands inside the levee. Appellees further contend that the preliminary report of the Commissioners is conclusive as to the question of affected lands and is not subject to review in the absence of fraud.

This is a special statutory proceeding and the purpose of the Act here under consideration is '* * * to provide for the protection and reclamation of lands subject to overflow, by the construction and maintenance of levees.' ¹

Section 7 of ch. 223 of the Acts of 1907, being § 27-807, Burns' 1948 Repl. provides: 'This act shall be liberally construed to promote the protection of lands subject to overflow, * * *'. The purpose and intent of the Legislature in enacting this legislation was to provide for the building of levees to protect certain lands, improve the public health, and be of public utility generally, and the statute must be construed to this purpose. J. Wooley Coal Co. v. Tevault, 1918, 187 Ind. 171, 118 N.E. 921, 119 N.E. 485. Also, the purpose to be accomplished is in the interest of the public and this factor must be considered in determining the scope of the Act and limitations which may be placed thereon. 50 Am.Jur., Statutes, § 395, p. 420.

There are three stages in the proceedings to establish a levee under this Act, viz: (1) the filing of the petition; (2) the filing of the preliminary report; and (3) the filing of the final report. A hearing at each of these stages of the proceedings is provided by the Act.

(1) Section 27-802, Burns' 1948 Repl. provides for the hearing of '* * * any demurrer or written objection to the sufficiency of the petition offered by any person named in the petition, or by any other person who shall satisfy the court, by allegation and proof, as in civil actions, that he has an interest that will be affected by such levee.'

(2) Said section further provides for a hearing upon the Commissioners' preliminary report as follows: 'Any petitioner, landowner or corporation named in the petition, or who has appeared thereto, shall have twenty (20) days from the filing of such preliminary report within which to file any exceptions thereto; and any landowner not named in the petition and whose lands are not described therein, but who is named in such preliminary report and his lands therein described, and any corporation so brought in, shall have twenty (20) days from the date of the service or posting of notice of such preliminary report within which to file such exceptions.'

(3) Section 27-803, Burns' 1948 Repl. provides for a hearing upon the filing of the final report of the Commissioners as follows:

'Upon the filing of such report, ten (10) days, exclusive of the day of filing and of Sundays, shall be allowed to any person or corporation affected by such levee or whose lands are assessed or damaged to remonstrate against the report, which remonstrance shall be sworn to, and may be for any of the following causes:

* * *

* * *

'Fourth. By any person or corporation against whom, or against whose lands, benefits are assessed, that the damages assessed to any other person or corporation, or to the lands of any other person or corporation, specifying the same, are too great.

* * *

* * *

'Eighth. By any person or corporation, in whose favor, or in favor of whose lands, damages are assessed, that the damages assessed are inadequate; or by any person or corporation injured by such work, or whose lands or other property will be injured thereby, that no damages have been assessed therefor.

'Ninth....