Metty v. Marsh
| Decision Date | 18 February 1890 |
| Citation | 23 N.E. 702,124 Ind. 18 |
| Parties | Metty et al. v. Marsh et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Wells county; Henry B. Saylor, Judge.Dailey, Mack & Simmons and E. C. Vaughn, for appellants. A. N. Martin and France & Lee, for appellees.
Under the provisions of sections 4285 and 4286, Rev. St. 1881, the appellee filed a petition with the board of commissioners of Wells county, at its September term, 1886, praying the location and construction of a public ditch. The proposed ditch is described in the petition as follows: “Commencing at a point about the center of the east half of the south-east quarter of section seventeen, (17,) in township twenty-five (25) north, range twelve (12) east; thence in a north-easterly direction to a point about twenty (20) rods west of the south-east corner of the north-east quarter of said south-east quarter; thence north about forty (40) rods; thence a little north of west until it intersects the Rock Creek ditch; said proposed ditch to follow the natural channel for water the entire distance.” Upon filing of the petition and the bond required by the statute, said board appointed three viewers to view, mark out, and locate the ditch as prayed for in the petition. The viewers filed their report at the December term of said board, 1886, in which they reported that the proposed ditch would be of public utility, and assessed the cost of construction of the same to the parties to be affected thereby as follows:
+---------------------------------------------+
¦Names. ¦Am't of benefits.¦Assessm'ts.¦
+---------------+-----------------+-----------¦
¦Harrison Marsh ¦$391 70 ¦$195 85 ¦
+---------------+-----------------+-----------¦
¦Lydia S. Metty ¦116 00 ¦58 42 ¦
+---------------+-----------------+-----------¦
¦Isaac H. Turner¦83 28 ¦41 64 ¦
+---------------+-----------------+-----------¦
¦Isaac Hahn ¦50 38 ¦25 19 ¦
+---------------------------------------------+
Upon the filing of this report the appellee Harrison Marsh remonstrated against the same upon the ground that the benefits assessed against his land were too high; that the ditch was not located by said viewers upon the most practicable route; and that there were other lands, not described in the report, which would be benefited by said ditch, and should be assessed for the cost of its construction. After consideration of this remonstrance, said board appointed three reviewers, who filed their report at the March term of said board of commissioners for the year 1887. In this report the reviewers assessed the benefits and costs occasioned by the construction of the ditch as follows:
+-----------------------------------+
¦Names. ¦Benefits.¦Costs. ¦
+-----------------+---------+-------¦
¦Harrison Marsh ¦$343 84 ¦$171 92¦
+-----------------+---------+-------¦
¦Lydia S. Metty ¦184 20 ¦92 10 ¦
+-----------------+---------+-------¦
¦Isaac H. Turner ¦125 78 ¦67 89 ¦
+-----------------+---------+-------¦
¦Isaac Hahn ¦46 98 ¦28 49 ¦
+-----------------+---------+-------¦
¦Wells County ¦30 00 ¦15 00 ¦
+-----------------+---------+-------¦
¦James E. Lockwood¦30 00 ¦15 00 ¦
+-----------------------------------+
The notice required by the statute having been given, and no further remonstrance or objection being made, the board of commissioners of Wells county heard the evidence on said petition on the 8th day of March, 1887, and entered up an order on its records establishing said ditch. On the 11th day of March, said Isaac H. Turner, James E. Lockwood, Lydia S. Metty, and Isaac Hahn filed with the auditor of said county their separate appeal-bonds, and prayed an appeal of said cause to the circuit court. In the circuit court, appellants moved to dismiss the cause on account of the insufficiency of the petition. During the pendency of this motion the appellee asked and obtained leave to amend the petition, which was done, and the motion was overruled. The appellants also moved to dismiss the amended petition, whereupon the appellee moved for judgment establishing the ditch in controversy on the petition, report of the viewers, and the report of the reviewers. Pending this motion the appellants asked leave to file bonds and several remonstrances to the amended petition, which was denied. Appellants then asked leave to introduce evidence in the cause to prove-“ First, that said ditch, when constructed, will not be conducive to the public health, convenience, or welfare; second, that the route of said ditch is not practicable; third, that the costs and expenses of the construction of said ditch will exceed all the benefits that will be derived by the construction of the same; and, fourth, that the lands of the appellants Lockwood and Hahn will not be benefited by the construction of said ditch.” The court refused to hear such proof, and sustained the motion of the appellee, and entered judgment establishing said ditch. The court overruled a motion for a venire de novo, and also a motion for a new trial. The appellants jointly assign errors in this court calling in question the several rulings above set forth; and the appellant Lockwood also assigns separate errors, calling these rulings in question as to himself alone.
It was in the discretion of the circuit court to permit the appellee to amend his petition in that court. Coolman v. Fleming, 82 Ind. 117;Burns v. Simmons, 101 Ind. 557, 1 N. E. Rep. 72; Williams v. Stevenson, 103 Ind. 243, 2 N. E. Rep. 728. But we think the petition was sufficient without ...
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