Norris v. Tice

• Decision Date: 12 March 1895
• Docket Number: 1,230
• Citation: 39 N.E. 1046,13 Ind.App. 17
• Parties: NORRIS, TRUSTEE, v. TICE
• Court: Indiana Appellate Court

39 N.E. 1046

13 Ind.App. 17

NORRIS, TRUSTEE, v. TICE

No. 1,230

Court of Appeals of Indiana

March 12, 1895

Petition for rehearing overruled June 12, 1895.

From the La Grange Circuit Court.

Judgment reversed.

J. W Hanan, R. W. McBride and C. S. Denny, for appellant.

J. M Vanfleet, for appellee.

REINHARD J. Davis and Gavin, J. J., absent.

OPINION

REINHARD, J.

This action was brought by the appellant as trustee of Clay township, LaGrange county, against the appellee for the enforcement of a lien growing out of the repairing of an allotment of a certain public drain in said township and assessed upon certain real estate of the appellee.

The statute under which the lien is claimed provides that all public drains constructed under any law of this State shall be under the control and supervision of the township trustee, whose duty it shall be to see that they are kept clean after allotments thereof shall have been made by the county surveyor as provided in the subsequent section. It is made the duty of the latter official, immediately after the passage of the act, to view and examine every such drain in his county and to fix the portion thereof that the owner of each tract of land assessed for its construction shall annually be required to clean out and repair. Each ditch or drain is to be cleaned out to a depth and width not less than its original specification. The township trustee shall procure a transcript of the surveyor's record of allotments of ditches in his township, as soon as practicable after the same is made, and before the first day of August of each year, fix a time within which each allotment shall be completed by the person whose duty it is to perform the same, beginning with the allotment nearest the mouth of the ditch and proceeding in regular succession to the beginning thereof, and of this give notice to such person. It is made the duty of the person to whom the allotment is made to perform such work within the time fixed in the notice, and on failure to do so the trustee shall proceed at once to have the same done at the expense of such person and certify the costs thereof, including his own per diem, to the auditor of the county, who shall place the same on the tax duplicate to be collected as other taxes are collected; or the trustee may bring suit in the circuit or superior court of the county to collect such expense and proper fees, and enforce and foreclose the lien on the land it drains, and in such suits the trustee shall recover attorney's fees, etc., R. S. 1894, section 5638, et seq.

The appellee answered in two paragraphs, the first of which was the general denial. The second paragraph is in substance, as follows: That prior to September 25, 1891, the defendant saw said Norris, trustee as aforesaid, and said to him that he wished he would extend the time of cleaning out his allotment of the said ditch, because it was extremely dry, and that it was impossible to dig in the bottom of said ditch, because said ground was so hard; that said trustee said to defendant that he need not do so until it rained; that he himself could not clean his own allotment until it rained, which did not occur until about the 10th day of October; that when the rain came, he immediately proceeded to clean out said allotment to the depth that it was originally dug; that he believed he was justified by the direction of said Norris to defer said work until after rains came; that after he had so cleaned out said allotment, the same was accepted by said trustee as completed. Wherefore, defendant prays judgment for his costs.

To this paragraph of answer the appellant demurred, but the demurrer was overruled and the appellant excepted. This ruling is assigned as error.

It is obvious that that portion of the pleading under consideration which undertakes to give an excuse for the delay in performing the work is not sufficient to bar the action. If the allotment was completed to the satisfaction of the trustee, in good faith, before such trustee had the work done upon it, for which he prosecutes this action, we think this would be a complete defense. But whether the answer, when construed together in all its averments, constitutes a bar to the action depends, in our judgment, upon whether or not the fact that the work was accepted by the trustee is well pleaded. Undoubtedly if the trustee in the exercise of his discretion received the work as completed at the hands of the appellee, such acceptance would be a bar to the present action. There is no attempt to plead that the work was finished as the law required. Certainly the fact that appellee "proceeded to clean out said allotment to the depth that it was originally dug" would not be a compliance with the statutory requirements. Nor do we think...