Poundstone v. Baldwin

• Decision Date: 26 May 1896
• Docket Number: 17,804
• Citation: 44 N.E. 191,145 Ind. 139
• Parties: Poundstone et al. v. Baldwin
• Court: Indiana Supreme Court

44 N.E. 191

145 Ind. 139

Poundstone et al. v. Baldwin

No. 17,804

Supreme Court of Indiana

May 26, 1896

From the Cass Circuit Court.

Affirmed.

Magee & Funk, for appellants.

D. C Justice, and Nelson & Myers, for appellee.

OPINION

Monks C. J.

Appellee filed, in the court below, his petition for the drainage of certain real estate, by straightening and deepening an old open drain and laying tile therein.

Appellants were named as landowners who would be affected by the proposed work. Afterwards, an amended petition was filed, to which appellants filed a plea in abatement. Appellee filed a demurrer to the plea in abatement, which was sustained.

Appellants filed their remonstrance against the proposed work and for damages. The cause was tried by the court, and at the request of appellants, the court made a special finding of the facts and stated the conclusions of law thereon, to each of which each appellant excepted. Over appellants' motion in arrest of judgment, the court rendered judgment that the proposed work be established, etc.

The errors assigned and not waived are:

1. The court erred in sustaining the demurrer to the plea in abatement to the amended petition.

2. The court erred in each of its conclusions of law.

3. The court erred in overruling the motion in arrest of judgment.

The plea in abatement to the amended petition, proceeded upon the theory that this proceeding was under the sections 5649, 5663, R. S. 1894, acts 1893, p. 159, providing for the tiling of public drains. This act requires that the petition for tiling such drains be signed by a majority of the resident landowners along the line and benefited by the tiling of such drain.

The law of 1893, sections 5649, 5663, supra, does not contemplate any substantial change in such drain, except changing the same from an open to a covered drain, while the amended petition is to straighten and deepen an old drain. The amended petition shows that this proceeding was brought under sections 5622, 5630, R. S. 1894. Acts 1885, p. 219; Rogers v. Venis, 137 Ind. 221, 36 N.E. 841, and cases cited, p. 224; Sample v. Carroll, 132 Ind. 496, 498, 32 N.E. 220. The last named law does not require that the petition be signed by a majority of the resident landowners.

There was no error, therefore, in sustaining appellee's demurrer to the plea in abatement.

Counsel for appellants urge that the court erred in its first conclusion of law; that appellee was entitled to have the proposed work established as prayed for in his petition, for the reason that it is not found in the special finding that the drainage proposed is practicable. Such fact, as well as all other essential facts to which counsel for appellants have called attention, are set out in the special finding. The court did not err therefore in its first conclusion of law.

The second conclusion of law is, that appellant Poundstone is entitled to receive $ 50.00 damages for the destruction of timber, to be paid out of the funds of said ditch.

Counsel for said appellant insist "that before said work could be established that the damages assessed must first be paid or tendered. That the taking of private property to establish a drain is not a taking by the State, but by the individual who fancies that his land will be benefited by such drain."

This contention is based upon the theory that the construction of a drain is the taking of one man's property for the use of another.

This court has uniformly held that the taking of private property, authorized by the drainage laws of this State, was for a public and not for a private use. Zigler v. Menges, 121 Ind. 99, 22 N.E. 782; Heick v. Voight, 110 Ind. 279, 11 N.E. 306, and cases cited; Anderson v. Baker, 98 Ind. 587, and cases cited; Wishmier v. State, 97 Ind. 160, and cases cited; Chambers v. Kyle, 67 Ind. 206; Tillman v. Kircher, 64 Ind. 104.

The discussion of counsel upon this point is answered fully and completely by this court in the case of Ross v. Davis, 97 Ind. 79, page 83, in which the court says: "It is insisted that the provisions for the construction of drains, made in the statute, are intended for private benefit only. Although the proceedings for the construction of a drain under the statute, such as the appellee instituted, can be commenced only by an owner or owners of lands which will be benefited by drainage, yet this objection of the appellants is sufficiently answered by referring to the provision of the statute, that the petition of such owner or owners shall state that in the opinion of the petitioner or petitioners the public health will be improved, or one or more public highways of the county or streets of a town or city will be benefited by the proposed drainage, or the proposed work will be of public utility; and the requirement that the commissioners of drainage shall consider whether, when accomplished, the drainage will improve the public health or benefit any public highway in the county, or street of a town or city, or be of public utility; and the provision that any owner of lands affected may remonstrate on the ground that the proposed work will neither improve the public health, nor benefit any public highway of the county, nor be of public utility, and that if the finding of the court be in support of the remonstrance, on this cause of remonstrance the proceedings shall be dismissed at the cost of the petitioner; also, the provision for the keeping of such drains, after their construction, in proper repair and free from obstruction by the public, through the township trustee, at public expense. Ingerman v. Noblesville Tp., 90 Ind. 393.

"It is not necessary, in order that the use may be regarded as public, that the whole community or any large portion of it may participate in it. If the drain be of public benefit, the fact that some individuals may be specially benefited above others affected by it will not deprive it of its...