Petition for Construction of an Open Ditch in Jackson Tp. to be Known as Gall Ditch, 29710
| Decision Date | 28 April 1959 |
| Docket Number | No. 29710,29710 |
| Citation | 239 Ind. 512,157 N.E.2d 823 |
| Parties | Petition for the CONSTRUCTION OF AN OPEN DITCH in JACKSON TOWNSHIP TO BE KNOWN AS the GALL DITCH. Arthur GALL, Dorothy Gall, Jesse Eisenhour, Roy Eisenhour, Dane W. Rarick, Appellants, v. Aaron WISE et al., Appellees. |
| Court | Indiana Supreme Court |
Vernon, Hartzog, Barker & Hepler, Goshen, for appellants.
Robert B. Beeson, Goshen, Charles L. Whistler, Indianapolis (Mehl & Mehl, Goshen, Baker & Daniels, Indianapolis, of counsel), for appellees.
The appellants filed a petition for the construction of an open drainage ditch in Elkhart County, Indiana, and after notice was given, the petition was docketed, viewers were appointed and a preliminary report favorable to the petitioners was made. Later the Engineer and Drainage Commissioner filed report on July 16, 1957, and the court fixed August 23, 1957, as the time for hearing on said report and notices were given. Objections were filed to said report by the State of Indiana and others on August 20, 1957. On November 21, 1957, an 'Amended Engineers and Drainage Commissioners Report on Gall Ditch in Jackson Township--Elkhart County State of Indiana' was filed. On November 22, 1957, appellees, Wise and others, filed their remonstrances against the amended report. Thereafter on March 25, 1958, the petitioners filed motions to strike out the joint remonstrance, which motions were on said day by the court overruled, whereupon trial was had on the issues, with finding and judgment thereon rendered in favor of the remonstrators on May 5, 1958.
Thereafter, on June 3, 1958, the petitioners filed their motion for a new trial, which motion was on July 1, 1958, overruled and this appeal was perfected.
The assignment of errors contains one specification:
Appellants contend that on August 27, 1957, certain remonstrances were filed to the apportionment that were not pertinent to the issues, and that on the 21st day of November, 1957, the drainage commissioner filed an amended report to which remonstrances were filed on November 22, 1957, which amended report contained no new matters, and that where an amended report is filed, remonstrances thereto are limited to new matters therein contained.
This proceeding was instituted pursuant to Sections 27-101 to 27-117, Burns' 1948 Replacement, which authorize the establishment and construction of ditches and drains and establish procedure therefor.
The issues here have been narrowed to the timeliness of the remonstrances filed on November 22, 1957, and the alleged error of the trial court in sustaining them.
The pertinent sections of the statute applicable here may be briefly summarized for the purpose of this opinion as follows:
Acts 1945, ch. 221, § 4, p. 1021, being § 27-104, Burns' 1948 Replacement, provides for the filing of a petition to establish a drainage ditch and prescribes the procedure to be followed.
Acts 1945, ch. 221, § 6, p. 1021, being § 27-106, Burns' 1948 Replacement, provides that the petitioners are required to give notice to all persons named in the petition and that upon filing the judge shall docket the petition and appoint viewers to act with the county surveyor.
Acts 1945, ch. 221, § 7, p. 1021, being § 27-107, Burns' 1948 Replacement, provides that any person named in the petition shall have ten days after 'docketing' to object or remonstrate (1) to the form of the petition, and (2) as to any reason why the surveyor or viewers might be disqualified.
Acts 1945, ch. 221, § 8, p. 1021, being § 27-109, Burns' 1948 Replacement, provides that if no remonstrance is filed pursuant to § 27-107, supra, or Acts 1933, ch. 264, § 8, p. 1168, being § 27-108, Burns' 1948 Replacement, then the judge, if he deems the petition sufficient, makes an order referring the matter to the surveyor and viewers. If objections, as provided in § 27-107, supra, are not made within ten days of the date of docketing, the petition is entered on the docket and any question as to the form of the petition and as to the qualifications of the surveyor and viewers is waived and cannot be raised at subsequent stages in the proceedings. Hunsucker v. Montel, 1926, 198 Ind. 557, 562, 563, 146 N.E. 110, 154 N.E. 389; Stroup v. Ferguson, 1928, 200 Ind. 139, 142, 161 N.E. 628; Myers v. Sell, 1948, 226 Ind. 608, 615, 616, 81 N.E.2d 846. See: McKee v. Hasler et al., 1951, 229 Ind. 437, 98 N.E.2d 657. The judge in the order referring the matter to the surveyor and viewers must fix a time within which the surveyor and viewers shall meet and make their report.
Such order was entered herein on July 16, 1957.
Acts 1945, ch. 221, § 9, p. 1021, being § 27-112, Burns' 1948 Replacement, provides that upon filing the report pursuant to § 27-109, supra, the judge or the court...
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