Otis v. De Boer

• Decision Date: 05 January 1889
• Citation: 116 Ind. 531,19 N.E. 317
• Parties: Otis v. De Boer et al.
• Court: Indiana Supreme Court

116 Ind. 531

19 N.E. 317

Otis

v.De Boer et al.¹

Supreme Court of Indiana.

January 5, 1889.

Appeal from circuit court, Jasper county; P. H. Ward, Judge.

This was an action by Binnie De Boer against Joseph E. Otis and others, to enforce the lien of an assessment for drainage against certain land in Jasper county. Plaintiff had judgment, and defendant Otis appeals.

Simon P. Thompson, for appellant. Frank W. Babcock and Edwin P. Hammond, for appellees.

Niblack, J.

On the 8th day of September, 1880, Binnie De Boer, the appellee in this proceeding, presented a petition in writing to the board of commissioners of the county of Jasper, representing that he was the owner in fee-simple of a particularly described tract of land in a certain township of that county, which was wet, marshy, and overflowed land, and which, for its drainage, required the widening, deepening, and clearing out of a ditch then already constructed through a part of such land, and the construction of an additional open drain, both extending a distance of 6,500 feet on a particularly specified route; also representing that the proposed work could not be constructed without affecting the lands of other persons situate in the same township and county, giving a list of such lands, and the owners thereof, respectively,in which Jasper Corning was named as the owner of four of the tracts of land contained in such list. The petition further represented that the proposed work, when constructed, would be conducive to health, and would be a work of public utility, and prayed the appointment of appraisers to make assessments against the lands which would thereby be benefited, under the provisions of the act of March 13, 1879, (Acts 1879, p. 234.) Ten days before the time at which the petition was presented, De Boer gave notice of its presentation by posting up written notices in three of the most public places of the township in which the lands were situate, describing the lands to be affected, and giving the names of the owners thereof as they appeared in the petition. The board of commissioners, after hearing proof of the matters alleged in the petition, and of the posting up of notices as stated, made an order appointing three disinterested freeholders of the county as appraisers to make assessments against the lands to be affected and benefited by the contemplated drainage. A copy of this order and appointment was very soon delivered to the appraisers by De Boer, and, a part of the land-owners being non-residents of the county as well as of the state, he caused notice to them that said appraisers would meet at the place of beginning of the work in hand on the 6th day of October, 1880, to be published in due time in a weekly newspaper of general circulation published in said county of Jasper.

The appraisers met at the time and place named, and, coming to the conclusion that the resident land-owners had not been sufficiently notified of the meeting, they adjourned to meet at the same place on the 27th day of October, 1880, notice of which latter meeting was properly served on such resident land-owners. On this last-named day the appraisers met, and proceeded to examine the lands to be affected, and to make assessments for benefits and costs of the proceedings against each and every tract thereof. They made assessments agaimst the several tracts of land described in the petition as belonging to Jasper Corning, as follows: Against the first described, the sum of $93.08; against the second, the sum of $26.75; against the third, the sum of $173.14; against the fourth, the sum of $129.20. The appraisers thereupon made a report, under oath, of the assessments so made by them, and upon such other matters as they were required to examine, and concerning which they were to make a report, a copy of which report was duly recorded in the proper recorder's office. De Boer then caused the ditch to be completed according to the specifications, prior to the 12th day of December, 1884; and on that day the surveyor in charge of the work executed a written certificate, stating the fact of such completion, which was on the day following filed with the auditor of Jasper county. De Boer also paid all expenses of the proceedings upon his petition, as well as the cost of constructing the ditch. In the proceedings which led to the assessments against the lands described in the report of the appraisers, Jasper Corning was treated as a non-resident of the state of Indiana, and was, as such, only constructively notified by publication in a newspaper as stated.

The assessments made against the lands alleged to have been owned by Jasper Corning not having been paid, De Boer commenced this suit against Joseph E. Otis, and the unknown heirs and devisees of Jasper Corning, deceased, and the unknown heirs and devisees of the unknown heirs and devisees of the said Jasper Corning, to enforce the supposed liens created by such assessments, averring the facts hereinabove stated, and alleging that at the time of the presentation of his petition to the board of commissioners of Jasper county, and for more than two years thereafter, the lands in question were shown by the real-estate transfer book in the office of the auditor of said county of Jasper to be the property of Jasper Corning; and that for that reason, as well as because the same also so appeared on the proper tax-lists and duplicates, such lands were represented in the petition and in the list of assessments as belonging to the said Jasper Corning.

In referring to the lands to be affected by the proposed ditch, the petition preliminarily stated that “the following is a list of lands, with the names of the owners thereof, so far as can be ascertained by your petitioner.” The complaint further alleged that more than two years after the assessments against the lands were made, the plaintiff, De Boer, ascertained that Jasper Corning had died prior to the year 1880, seized in fee-simple of the lands so assessed; that he (the plaintiff) did not know, and was therefore not able to state, who were the heirs or devisees of the said Jasper Corning, or to whom...