Meehan v. Wiles

• Decision Date: 11 January 1884
• Docket Number: 11,016
• Citation: 93 Ind. 52
• Parties: Meehan v. Wiles
• Court: Indiana Supreme Court

93 Ind. 52

Meehan v. Wiles

No. 11,016

Supreme Court of Indiana

January 11, 1884

From the Hamilton Circuit Court.

D Moss, R. R. Stephenson and W. H. Craig, for appellant.

W. Neal and J. F. Neal, for appellee.

OPINION

Franklin C.

Appellant sued appellee for a certain ditch assessment made under the statute of March 15th, 1879.

The defendant filed a special paragraph of answer, to which a demurrer was overruled.

The plaintiff filed a special paragraph of reply, which, on motion of the defendant, was by the court stricken out, and judgment rendered for the defendant for costs.

The errors assigned are the overruling of the demurrer to the answer and the striking out of the reply.

The answer, in substance, alleges that at the time of hearing the petition for the ditch by the board of commissioners, the defendant, with others, appeared before the board and remonstrated against the construction of the ditch on the ground of the want of public utility; that the board decided that the ditch would be of public utility, overruled the remonstrance filed, and appointed appraisers to assess the damages and benefits of land-owners affected thereby, from which the defendant appealed to the circuit court of said county, and filed his bond in said appeal, which was approved by said board, and a transcript of the proceedings therein was filed in the said circuit court, and the appeal placed upon the docket of the said circuit court to be heard and determined as other causes pending therein; that, notwithstanding said appeal, the plaintiff proceeded under said order establishing said ditch and appointing said appraisers to have the damages and benefits appraised and the assessments made for the construction of the ditch, and to have the ditch constructed and completed accordingly, during the pendency of said appeal and before the same was finally determined in said circuit court; that said assessment was and is void for the want of authority to make the same.

The reply admits the appeal, the making of the assessment, and the construction of the ditch during the pendency of the appeal, and before it was finally determined in the circuit court; and avers that the appeal was afterwards finally determined in favor of appellant, and the said order of the board was approved and adopted as the order of the circuit court.

The questions presented and discussed by counsel are, did the appeal stay proceedings under the order of the board until its determination? And, if so, did the subsequent proceedings of the circuit court validate such proceedings had under the order of the board while the appeal was so pending?

Appellant insists that the appeal to the circuit court was a nullity, for the reason that no such appeal could be legally taken, that the order of the board determining that the contemplated work was of public utility, establishing the ditch, and appointing the appraisers, was merely an interlocutory order from which no appeal would lie, and that the statute under which the proceedings were had only gives the right to appeal from the assessment, which was not done in this case.

The first section of the act of 1879 (see Acts 1879, p. 234), in the last part thereof, provides that "any person, whose land is affected by said proposed ditch or drain, may come before such board and contest the public utility of the same; and if the board of county commissioners become satisfied that the work contemplated by the applicants is of public utility, they shall appoint three disinterested freeholders, appraisers."

This embraces all the duties required by the act to be performed by the county board in relation to the matter; and from which no right of appeal is expressly given by the act.

All the other proceedings are had by, between and with the appraisers, engineer and county auditor. The 12th section of the act, Acts 1879, p. 238, provides for an appeal from any of the proceedings of the appraisers, but such appeal shall not avoid the assessment or destroy its lien, but shall only affect the amount assessed against the appealing party.

So, if an appeal from the determination of the county board, upon being satisfied that the ditch is of public utility, establishing it and appointing appraisers, can not be taken, then no appeal lies from any decision of the county board in relation to the matter.

In the case of Houk v. Barthold, 73 Ind. 21, the following language is used: "The provision of the commissioners' statute is, of itself, broad enough to authorize an appeal. The language of section 31 is very broad: 'From all decisions of such commissioners there shall be allowed an appeal.' 1 R. S. 1876, p. 357, sec. 31.

"The order of the board 'establishing the ditch' is certainly a decision, and, if a decision, the aggrieved party has a right of appeal under the general statute. The clause quoted from section 10 of the ditching statute, by reference embodies the provisions of section 31 of the commissioners' statute, and thus expressly applies them to all final decisions under the former act. The right...