Papenbrook v. White
| Decision Date | 19 December 1923 |
| Docket Number | No. 24080.,24080. |
| Citation | 141 N.E. 804,194 Ind. 17 |
| Court | Indiana Supreme Court |
| Parties | PAPENBROOK et al. v. WHITE. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Allen County; Geo. M. Eberhart, Special Judge.
Proceedings instituted by Harley O. White for the establishment of a drain. From a judgment confirming an amended report of the drainage commissioners, as modified by the court, and ordering the ditch established, Bernard Papenbrook and others appeal. Affirmed.J. H. & A. L. Aiken, Levi A. Todd, and Lee J. Hartzell, all of Fort Wayne, and Harvey Crabill, of Monroeville, for appellants.
Barrett, Hoffman & Barrett, of Fort Wayne, for appellee.
The appellee filed, in the Allen superior court, his petition for the establishment of a drain. From a judgment confirming an amended report of the drainage commissioners, as modified by the court, and ordering the ditch established, this appeal is taken.
Some of the appellants were named in the petition for the drain and their land described as being affected, and the other appellants were brought in by the report of the drainage commissioners. Due notice was given to those named in the petition, and, after the filing of the report of the commissioners, due notice was given to the landowners named in said report who were not named in the petition.
After the petition was docketed, no remonstrances or objections were filed to the petition, and the same was referred to drainage commissioners, who filed their report on September 13, 1919.
On September 22, 1919, the appellants James D. McCormick, Dan Slatterly, Charles D. Dittlinger, Frank Neadstine, John Neadstine, John R. Minerd, Sarah C. Van Horn, Omer H. Hardy, James Minerd, and William Schmidt filed remonstrances, alleging three grounds of remonstrance, namely:
(1) That it would not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits.
(2) That the proposed work will neither improve the public health nor benefit any public highways of the county, nor be of public utility.
(3) That the proposed work as decided upon and reported by the drainage commissioners will not be sufficient to properly drain the lands to be affected thereby.
At the same time appellants Omer H. Hardy and Joseph E. Baldwin filed separateremonstrances, setting out the same causes of remonstrance as above set out, and also claiming that they would be damaged by the construction of the proposed drain.
Remonstrances were also filed by other persons, who are not appellants.
Evidence was heard on the issues raised by these remonstrances, and on July 17, 1920, the court found that the report of the commissioners was not according to law for two reasons:
(1) That the report of the commissioners showed the drain to extend beyond the boundary line of the state of Indiana, it extending into the state of Ohio about 140 feet.
(2) That the details and specifications of the proposed ditch were not sufficiently specific as to a part of said proposed ditch which was to follow the channel of an existing ditch.
The court referred said report back to the original drainage commissioners, ordered them to amend and perfect the same according to law, and to report not later than July 23, 1920.
On July 23, 1920, said drainage commissioners filed their amended report.
The only difference between the amended report and the original report was that the ditch terminated at the Indiana state line and more detailed specifications were given for that part of the new ditch, which was laid over the route of a former ditch, so as to show the width of that part of the proposed ditch at the top as well as at the bottom, the width at the bottom only having been shown in the original report, and also to show the total depth of such part of the new ditch, whereas, the original report only showed the depth below the bottom of the existing drain.
The only change that the amended report made in the proposed ditch, over that contained in the original report, was that the ditch stopped about 140 feet short of the terminus provided in the original report, the excavation was 17 yards less in the entire work, and the estimated cost was $17 less than the estimated cost in the original report.
The grade, or fall, of the ditch was the same in both reports, as was its route, and in all other respects it was the same ditch.
On July 24, 1920, which was after the amended report had been filed, the appellants filed a written motion to strike out the amended report, for the reasons that the term of office of Raymond J. Mourey, ditch commissioner, had expired prior to July 20, 1920, and that Commissioner George W. Schlemmer had moved from Allen county to Lagrange county after the original drainage commissioners' report was made and prior to July 20, 1920, both of these men having been commissioners to whom the original petition had been referred, who had made the original report, and who signed the amended report; also, alleging that the amended report was not according to law.
On the same date the appellants William Schmidt, James D. McCormick, John Neadstine, Bernard Papenbrook, and Frank Neadstine filed separate remonstrances to the amended report, specifying in such remonstrances the first, third, fourth, fifth, seventh, eighth, ninth, and tenth causes of remonstrance, as provided in section 6143, Burns' 1914.
On July 31, 1920, the other appellants filed similar remonstrances to the amended report.
On August 3, 1920, the appellants filed a motion asking leave to file what they termed a “two-thirds remonstrance” to the amended report, and also tendered for filing what they denominated a “two-thirds remonstrance.”
On November 8, 1920, the appellee filed his written motion to strike out the petition for leave to file the so-called two-thirds remonstrance, and also to strike out such two-thirds remonstrance, which motion was sustained by the court, and the appellants were refused the right to file the so-called two-thirds remonstrance.
The court on this date also overruled the motion of the appellants to strike out the amended report of the drainage commissioners.
On November 17, 1920, the appellee filed a written motion to strike out the separate remonstrances of the appellants to the amended report, which motion was sustained by the court.
The court then found in favor of the appellant Omer H. Hardy, on his remonstrance for damages that had been filed to the original report, and awarded him the sum of $450 damages, in addition to the amount awarded him by the commissioners in the original report.
The court then ordered the drain established and constructed, and confirmed the assessments and award of damages as made by the commissioners and modified by the court, and appointed Asa W. Grosvenor construction commissioner.
The appellants filed a motion for a new trial, which was overruled by the court.
By their motion for a new trial, the overruling of which they have assigned as error, and by other assignments of error, the appellants question the several rulings of the court above set out, as well as certain alleged errors occurring in the trial of said cause.
[1] It is urged by the appellants that the decision of the trial court is contrary to law and is not sustained by sufficient evidence, for the reason that the proposed ditch is in part to be constructed over the route of an existing ditch and the report of the drainage commissioners does not give the width, depth, or slope of those parts of the old ditch which are to be occupied by the proposed ditch, and cite the case of Cromer v. Bridenbaugh (1919) 188 Ind. 393, 123 N. E. 115, as sustaining this contention.
The case cited is not an authority on the point raised, for the reason that in the case referred to it was argued that the proposed ditch, which was to be constructed of tile laid in the bed of an established open ditch, was only to be supplemental to the original open ditch, and that part of this original ditch was to be left open above the tile, so that there would remain in effect drainage in two forms, namely, in part through the tile and in part through the channel left above the tile but within the banks of the original ditch.
The court held that the specifications were not sufficient to provide for a construction of this kind, for the reason that the width and depth to which the original channel was to be left open above the proposed tile was not shown, so that, if the ditch were constructed, there would be no fixed specifications for the same.
In the case at bar, the proposed ditch, where it follows the same course as the original ditch, is to entirely supplant that part of the original ditch, and the specifications of the ditch after construction would be the specifications as set out in the commissioners' report. There could be no reason for the report to contain the specifications of the original ditch, since the proposed ditch at all points is wider and deeper than the original.
[2] The appellants also urge that the decision below is contrary to law and not supported by sufficient evidence, for the reason that the court “had no right to order the drainage commissioners to make a new plan of construction and determine the terminus of the ditch.”
The court found that the original report of the commissioners was not according to law, for the reason that about 140 feet of the proposed ditch was in the state of Ohio, and also because the specifications were not sufficiently definite; but in its order to the commissioners they were only directed to amend and perfect their report according to law, and the order did not determine what the report should be.
The court having found that the original report was not according to law, it was then its duty to direct the commissioners to amend and perfect their report. Section 6143, Burns' 1914.
[3] It is next urged by appellants that the drainage commissioners were not competent to act in making the amended report, for the reasons set out in...
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