Meranda v. Spurlin

• Decision Date: 19 February 1885
• Docket Number: 11,870
• Citation: 100 Ind. 380
• Parties: Meranda v. Spurlin et al
• Court: Indiana Supreme Court

100 Ind. 380

Meranda v. Spurlin et al

No. 11,870

Supreme Court of Indiana

February 19, 1885

From the Tipton Circuit Court.

Judgment affirmed with costs.

M Garrigus, for appellant.

R. B Beauchamp, for appellees.

OPINION

Zollars, C. J.

This is a proceeding commenced in the Tipton Circuit Court, under the act of 1881, R. S. 1881, section 4273, et seq., as amended in 1883, Acts 1883, p. 173, to establish a drain, partly in Tipton and partly in Howard county.

Appellant was a remonstrant below, and has appealed from the judgment establishing the drain. We notice the objections to the proceedings below in the order discussed by his counsel.

The substance of the fourth cause of remonstrance, to which a demurrer was sustained, is, that the report of the commissioners is not according to law, for the reason that the portion of the proposed drain in Howard county, as located in the report, is along and upon a drain established and constructed pursuant to an order and judgment of the board of commissioners of Howard county, under the act of March 9th, 1875 (1 R. S. 1876, p. 428). The condition that this drain was in at the time these proceedings were commenced and consummated in the court below, is not stated in this cause of remonstrance. So far as we can know from this cause, that drain, on account of neglect or insufficiency, may have been abandoned as useless. This court has recently held that it is not sufficient in a remonstrance to use the general terms of the statute, that "the report of the commissioners is not according to law;" that the particulars in which it is not according to law should be stated; and, further, that the evidence on the part of the remonstrant will be confined to the issues tendered by his remonstrance. Higbee v. Peed, 98 Ind. 420; Anderson v. Baker, 98 Ind. 587. It follows from these cases that in determining the sufficiency of any particular cause of remonstrance we must look alone to the specific facts therein stated. This disposes of appellant's argument upon the demurrer to the fourth cause of remonstrance, that the report of the commissioners does not show with sufficient certainty "the method of drainage," etc.

This cause of remonstrance raises no such question. As to whether or not the method of drainage adopted is the cheapest and most practicable, it has been held, are questions for the judgment of the commissioners, and that, in the absence of fraud, their judgment upon these questions can not be reviewed; that their decision upon these questions need not be embodied in their report; and that, from their location of the drain, it will be presumed that they first determined these questions. Anderson v. Baker, supra.

If the fourth cause of remonstrance properly presents any questions, they are: First. As to the power and jurisdiction of the Tipton Circuit Court to establish the drain, a portion of which is in Howard county; and, Second. As to the authority to establish the drain along and upon the drain formerly established by the board of commissioners of that county. The first question has been decided adversely to appellant's contention, and it has been held that the court of the county in which the petitioner resides and the proceeding is commenced. has jurisdiction and authority to establish a ditch extending into another county. Shaw v. State, etc., 97 Ind. 23; State, etc., v. Turvey, 99 Ind. 599; Crist v. State, ex rel., 97 Ind. 389.

We know of no constitutional or statutory inhibition against locating and constructing one of these drains along and upon a drain formerly constructed pursuant to an order and judgment of the board of commissioners. These latter drains are constructed by the public for public purposes, and while the land-owners are assessed according to benefits derived, they do not thereby acquire vested rights that will prevent the location and construction of another drain upon the same line. The power is analogous to the power of cities to reconstruct streets, except in the latter case the statute provides that the damages caused by the improvement shall first be paid to the land-owner who was assessed for a former improvement. City of Kokomo v. Mahan, ante, p. 242. To hold the contrary would be to greatly embarrass and cripple the public authorities and individuals in the proper drainage of wet lands. The location and construction of such second drain is not a question of power, but rather one of policy. When a drain is thus located and constructed under an order of the board of commissioners, and the property-owners have been assessed for benefits, it would seem that some sufficient reason should exist for the construction of another drain upon the same line by the order and judgment of the circuit court. It might become a question of public utility as to the second drain; if so, that question could be tried under the eighth cause of remonstrance, as provided by the statute (Acts 1883, p. 177); and so it might become a question as to whether or not the land-owners will be benefited by, or should be assessed for, the construction of the second drain. If so, these questions could be tried under the fifth statutory cause of remonstrance. Acts 1883, p. 177. These questions of public utility, etc., and benefits, are questions of fact to be decided upon the evidence, and are not properly raised by any specific statements in the cause of remonstrance under examination. This cause, as filed, does not seek to raise these specific questions; they are raised by other causes of remonstrance, which we shall have occasion to notice hereafter.

An argument is made under the fourth cause of remonstrance, as filed, that as the drain crosses a railroad in Howard county, and as no notice was given to the railroad company, so far as its track in Howard county is concerned, the court below did not have jurisdiction, and its proceedings were without authority and void.

No such question is raised by this cause of remonstrance; it does not inform us of the fact of such crossing; nor is that fact developed by the petition, the notice, or the report of the commissioners. A plat attached to appellant's brief shows such a crossing, but we are confined to what is shown by the record, and can not otherwise take notice of such fact, if it be a fact.

The record shows that at the September term of the court, and on the day set for the docketing of the petition, as provided in the amended act, Acts 1883, p. 174, section 2, the petitioner filed a notice and affidavits showing that it had been posted along the line of the drain and at the door of the courthouse in each of the counties, as the law directs. The notice and affidavits are set out at length in the record. In an entry by the clerk, in which he attempts to give the substance of the affidavits, he omits the statement therein that the notice was posted at the door of the court-house in Howard county. On the same day he made the following entry: "It appearing to the court that notice of the filing of said petition has been given according to law, the same is ordered docketed, and by order of the court said cause is now docketed." The matter was referred to the commissioner without opposition from any one.

Pursuant to the order of the court, they filed their report at the November term. Upon objections being made by appellant, the report was referred back to the commissioners, and they filed an amended report a few days thereafter. Upon the filing of this amended report, appellant moved to set aside the reference to the commissioners, because the proper affidavits in proof of notice had not been filed. This motion was overruled. After the filing of a remonstrance by appellant, and the rulings upon it, and at a subsequent term, the petitioner moved for a nunc pro tunc entry, so that the recital by the clerk might show the proof of the posting of the notice at the door of the court-house in Howard county. The motion was based upon the affidavits, and an entry on the court's docket as follows: "Proof of notice filed, cause ordered docketed." These affidavits and entry upon the court's docket very clearly furnished sufficient ground upon which to base an order for a nunc pro tunc entry. There was, therefore, no error in the making of it. Chissom v. Barbour, ante, p. 1, and cases therein cited. Indeed, it is not apparent that under the amended act, Acts 1883, p. 174, section 2, there was any need for such an entry. The affidavits, in the first place, show that the...