Myers v. Sell, No. 28366.

Docket NºNo. 28366.
Citation82 N.E.2d 81, 226 Ind. 608
Case DateNovember 16, 1948
CourtSupreme Court of Indiana

226 Ind. 608
82 N.E.2d 81

MYERS et al.
v.
SELL et al.

No. 28366.

Supreme Court of Indiana.

Nov. 16, 1948.


Appeal from Newton Circuit Court; Victor K. Roberts, Special judge.

Dissenting opinion.

For majority opinion, see 81 N.E.2d 846.

[82 N.E.2d 81]

J. Edward Barce and Ralph Bower, both of Kentland, and Thomas F. O'Mara, of Terre Haute, for appellants.

Sammons & Sammons, of Kentland, for appellees.


EMMERT, Judge (dissenting).

The petitioner never acquired jurisdiction over the State of Indiana in the ditch proceedings. As far as the state was concerned, the entire proceedings ignored the plain provisions of § 24 of Article 4 of the Constitution of Indiana, which provides: ‘Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.’ See dissenting opinion in State v. Roberts et al., 1948, Ind. Sup., 78 N.E.2d 440.

‘Drainage proceedings are wholly statutory, and questions as to the authority of the court in constructing a new drain, or changing, repairing, or extending a drain already established, must be solved by a reference to the statute.’ Kilty v. Michael, 1921, 190 Ind. 374, 382, 130 N.E. 531, 534. See also Taylor v. Strayer, 1906, 167 Ind. 23, 78 N.E. 236,119 Am.St.Rep. 469;Kaufman v. Alexander, 1909, 173 Ind. 136, 139, 88 N.E. 502, 504.

The statutory provisions as to what the petition for repair of an existing drain must contain are perfectly clear. Section 27-120, Burns' 1948 Replacement, Acts 1933, ch. 264, § 20, p. 1168; 1937, ch. 162, § 2, p. 853; 1945, ch. 221, § 16, p. 1021, provides in part:

‘(a) The owner or owners of five (5) per cent in acreage of the land affected by and assessed for the construction of any public drain under any law of this state shall have the right to file a petition and therein allege:


* * *

‘(b) No petition filed in conformity with the provisions of paragraph (1) of subsection (a) of this section shall contemplate the increasing of the title, the average deepening and widening or the extension more than ten (10) per cent of the original plans and specifications.’ (Italics supplied.)

Without reference to the general principles of law concerning the pleading of any statutory causes of action, it is abundantly clear under the plain words of this statute that the burden is upon the petitioners to allege in their petition that the increasing or extension of the drain shall...

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7 practice notes
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...of the decision. It is only dependent upon the subject matter to which it relates. Myers v. Sell (1948), 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81; Brown [v. State], supra [ (1941), 219 Ind. 251, 37 N.E.2d 73]; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 In......
  • State ex rel. Indiana Dept. of Conservation v. Pulaski Circuit Court, No. 28858
    • United States
    • Indiana Supreme Court of Indiana
    • October 22, 1952
    ...cases of State v. Roberts, 1948, 226 Ind. 106, 76 N.E.2d 832, 78 N.E.2d 440, 446 and Myers v. Sell, 1948, 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81, has held that the state may be brought into drainage proceedings where its highways are affected, and that, therefore, it can and should be br......
  • Adoption of H.S., Matter of, No. 1-1184A296
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1985
    ...of the decision. It is only dependent upon the subject matter to which it relates. Myers v. Sell (1948), 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81; Brown, supra; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion C......
  • Largen v. Largen, No. 46A04-8803-CV-117
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1989
    ...of the decision. It is only dependent upon the subject matter to which it relates. Myers v. Sell (1948), 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81; Brown [v. State], supra [ (1941), 219 Ind. 251, 37 N.E.2d 73]; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 In......
  • Request a trial to view additional results
7 cases
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...of the decision. It is only dependent upon the subject matter to which it relates. Myers v. Sell (1948), 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81; Brown [v. State], supra [ (1941), 219 Ind. 251, 37 N.E.2d 73]; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 In......
  • State ex rel. Indiana Dept. of Conservation v. Pulaski Circuit Court, No. 28858
    • United States
    • Indiana Supreme Court of Indiana
    • October 22, 1952
    ...cases of State v. Roberts, 1948, 226 Ind. 106, 76 N.E.2d 832, 78 N.E.2d 440, 446 and Myers v. Sell, 1948, 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81, has held that the state may be brought into drainage proceedings where its highways are affected, and that, therefore, it can and should be br......
  • Adoption of H.S., Matter of, No. 1-1184A296
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1985
    ...of the decision. It is only dependent upon the subject matter to which it relates. Myers v. Sell (1948), 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81; Brown, supra; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion C......
  • Largen v. Largen, No. 46A04-8803-CV-117
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1989
    ...of the decision. It is only dependent upon the subject matter to which it relates. Myers v. Sell (1948), 226 Ind. 608, 81 N.E.2d 846, 82 N.E.2d 81; Brown [v. State], supra [ (1941), 219 Ind. 251, 37 N.E.2d 73]; Brendanwood Neighborhood Association v. Common Council of Lebanon (1975), 167 In......
  • Request a trial to view additional results

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