Myers v. Sell, 28366.

• Decision Date: 09 November 1948
• Docket Number: No. 28366.,28366.
• Parties: MYERS et al. v. SELL et al.
• Court: Indiana Supreme Court

226 Ind. 608
81 N.E.2d 846

MYERS et al.
v.
SELL et al.

No. 28366.

Supreme Court of Indiana.

Nov. 9, 1948.

Ditch proceedings to which Ralph R. Myers and others and Webster D. Sell and others were parties. From an adverse decree Ralph R. Myers and others appeal.

Reversed in part and affirmed in part and remanded with instructions.

GILKISON and EMMERT, JJ., dissenting.

For dissenting opinion, see 82 N.E. 81.

[81 N.E.2d 846]

Appeal from Circuit Court, Newton County; Victor K. Roberts, Special judge.
J. Edward Barce and Ralph Bower, both of Kentland, Thomas F. O'Mara, of Terre Haute, and Emmett M. LaRue, of Rensselacr, for appellants.

George F. Sammons, of Kentland, and Cope J. Hanley, of Rensselaer, for appellees.

YOUNG, Chief Justice.

This is an appeal from the same decree which was involved in the original action in this court entered State of Indiana v. Roberts, as Special Judge of the Newton Circuit Court. Opinion and mandate in that case is reported in Ind.Sup., 76 N.E.2d 832, and reference may be made to the opinion in that case for recital of facts and record not stated here. In that action the State sought a writ of prohibition to stop further proceedings in the drainage project involved in the case before us as against the State

[81 N.E.2d 847]

Highway Commission of Indiana and to prohibit the respondents in said action from carrying out that part of the decree in said proceedings which requires the construction of a new bridge at the cost of the State Highway Commission of Indiana at the point where the drain involved crosses State Highway No. 41. We declined to interfere with the execution of the decree in the cause before us, except that part thereof which orders the State Highway Commission to build a bridge on Highway 41 over the ditch or drain authorized by said decree.

Many of the questions of law presented and contentions made in the case before us were presented and made in the original action referred to and decided therein, and we feel disposed to follow in the matter before us the conclusions reached in our opinion in that case.

The appellants have filed with us an assignment which sets up 27 errors alleged to have been committed by the trial court. Some of these have been waived by failure to present them in the propositions, points and authorities set out in the brief. It is not urged in the brief that there is no evidence to show that the alteration and repair of the ditch will be of public utility, nor to sustain the assessments made, nor that the benefits do not exceed the cost, not including the cost of the bridge. Those presented boil down to only a few fundamental questions. The principal question which is presented by the brief is that the court had no jurisdiction over the State of Indiana, and that the State of Indiana was a necessary party, and that therefore the court was without jurisdiction of the action. We considered this proposition in our opinion in State v. Roberts, supra, and upon the authority of that case and for the reasons therein stated we hold that the court had jurisdiction of the drainage proceeding involved in the matter before us.

The statute under which the proceeding here involved was brought reads in part as follows:

‘(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:

‘(1) That such public drain, or any part thereof, being out of repair, is not sufficient to properly perform the drainage for which it was designed and intended, and may be more economically repaired, by tiling and covering, or by increasing the size of the tile and changing the course, or extending the length thereof, or by removing the tile and converting the drain into an open ditch, or by changing the course, deepening, widening or extending the length of an open drain, or by making any other change therein which would be of public...