Racer v. State, for Use of Rhine

• Decision Date: 30 April 1892
• Docket Number: 16,403
• Citation: 31 N.E. 81,131 Ind. 393
• Parties: Racer v. The State, for Use of Rhine, Drainage Commissioner
• Court: Indiana Supreme Court

31 N.E. 81

131 Ind. 393

Racer v. The State, for Use of Rhine, Drainage Commissioner

No. 16,403

Supreme Court of Indiana

April 30, 1892

From the Blackford Circuit Court.

Judgment affirmed.

J. N Templer, R. S. Gregory and A. C. Silverburg, for appellant.

W. H Carroll, G. Dean, B. G. Shinn and E. Pierce, for appellee.

OPINION

Elliott, C. J.

The appellant prosecutes this appeal from a decree rendered in a suit brought on the relation of Charles A. Rhine commissioner of drainage, to enforce the collection of an assessment levied to pay the cost of constructing a public ditch. The proceedings for the construction of the ditch were had in the Blackford Circuit Court, and were conducted under the drainage law of 1881, and the amendatory statute of 1883; section 4273, R. S. 1881, et seq.; Elliott's Supp., sections 1175 to 1183. The ditch was ordered to be constructed by the circuit court, the order was so far carried into effect by the execution of contracts, bonds and the like, as well as by the performance of work by the contractor, that six miles of the ditch had been constructed at the time this suit was brought, leaving five miles of the entire line of the ditch to be constructed. The appellant, against whose land an assessment was levied, answered, setting forth the contract for the construction of the ditch, which contract reads as follows:

"Smith Casterline, commissioner of drainage of Blackford county, Indiana, charged with the construction of the 'Big Lick Creek Ditch,' of the one part, and Henry C. Paul, of the other part, contract as follows: Said Henry C. Paul agrees to construct all that part of the Big Lick Creek Ditch which extends from station 0 to 668 thereof in said county, in all respects according to the specifications and requirements thereof in the report of the commissioners of drainage, confirmed by the judgment of the circuit court of said county establishing said ditch. No part of said work shall be accepted from said Henry C. Paul as completed until all of said ditch down stream therefrom shall have been completed according to said specifications; and said Henry C. Paul agrees to complete the work herein contracted for by the 12th day of March, 1891, or within ten days after all that part of said ditch which is down stream therefrom shall have been so completed as aforesaid, and accepted by said drainage commissioner and by the court establishing said ditch, and in consideration of all which said Henry C. Paul is to receive of said Casterline, commissioner of drainage, the sum of $ 15,498 out of the money arising from the assessments made by the drainage commissioners and confirmed by said court for the construction of said ditch. And it is agreed that Casterline shall not, in any event, be liable, either personally or as such commissioner, to pay any money to said H. C. Paul on account of this contract or the construction of the work herein contracted for except such money as he may obtain from said assessments; but that he shall use due diligence to so collect and apply said assessments as to pay said Henry C. Paul all money that shall become due him hereunder."

This contract is made with special reference to the act of the Legislature of this State, entitled "An act concerning drainage," approved April 8th, 1881, and the amendments thereof in chapter 126 of the Acts of 1883, approved March 8th, 1883.

The answer, after setting forth the contract, alleges "That by the terms of said contract with the said Paul for the construction of said ditch, no part of the cost and contract-price for the construction thereof is to be paid until said ditch shall have been constructed according to the plans and specifications, order and judgment of the court in the establishment thereof, and to the satisfaction and acceptance of said court; that said commissioner, long before the commencement of this suit, collected of the benefits so assessed, to wit: In May, 1889, more than $ 1,000, with which money he, as such commissioner, then and there, and long before the commencement of this suit, paid and settled all costs and expenses incident to the establishing of said ditch, as well as those incurred in preparation of reports and expenses which the petitioners incurred in the preparation and presentation of their said petition for the establishment of their said ditch, and all other expenses ordered and directed to be paid by the court by said commissioner, and all expenses of every kind and description connected with the location and establishment of said ditch and prosecution of said work, except the cost of construction agreed upon as set forth in said contract with the said Paul, which amount is not to be paid until said ditch shall have been constructed as therein provided for and in strict conformity with the plans and specifications for the construction of said ditch, as the same were reported by said commissioners, and ordered and adjudged by said court in the establishment thereof; that said commissioner now has in his hands, as such commissioner, so collected by him, a large sum of money, to wit, more than $ 100, after paying and adjusting all costs and expenses incident to the establishment of said ditch and the prosecution of said work as aforesaid, which amount of money is more than will be needed by said commissioner, or necessary in the further prosecution of said work, until the cost of construction as provided for in the said contract with the said Henry C. Paul shall become due and payable; that by the terms of said agreement the said contractor, Paul, is to have said ditch completed by March, 1891.

"The defendant avers that after the making of said contract for the construction of said ditch with the said Paul, the said Paul, with the full knowledge of said commissioner, commenced the construction of said ditch, and proceeded to construct the same by the use of a dredging machine, and has proceeded and constructed in manner and form as hereinafter stated some five miles of the same, and is proceeding by the use of said machine, and with the knowledge and permission of said ditch commissioner, to the construction of all the remaining portions of said ditch; that the route and lines of said ditch lie in and through a section of the country composed principally of loam, loose earth and quicksands; that the said contractor and the said commissioner began the construction of said ditch with said machine at the source thereof and proceeded toward the outlet, and did not, as they should have done, begin at the outlet and proceed to the source; that said machine is so constructed as that the same is managed and operated by steam power generated by the use of engine and boiler, floated in a boat to which levers and scoops are attached for removing the earth; said boat is a frame work so constructed as that in order to operate it it is made necessary to be sunk perpendicularly into both sides and banks of said ditch from two to five feet, and in such condition pinioned by the use of pillars and posts to hold it steady and in place while the work is being done; that in the use of said machine as aforesaid great quantities of water are retained in that part of the ditch where the excavations are made, by reason whereof the banks and grounds are kept thoroughly saturated, and in operating said machine the banks and ground are jarred and broken so that they crumble in; that in that portion of the ditch now dug, being some five miles or more as aforesaid, the same has been done without any regard to the plans and specifications provided therefor, and in total violation of the order and judgment of the court in establishing the same; that the said ditch has been cut and constructed from three to ten feet wider at the top, through the whole course thereof, than said plans and specifications, order and judgment of the court provide for; that the banks thereof are cut perpendicularly to a depth of from three to seven feet, without giving or providing for any slope thereto whatever, and the residue of said banks to the full depth of said ditch has been scooped and is being scooped by the use of said machine so as that the same, to wit: said banks are concave and irregular, and the bottom of said ditch, through the whole course thereof, has been constructed, and is being constructed, from two to ten feet wider than is provided for by said plans and specifications and order and judgment of the court establishing the same; that the whole of said ditch now constructed by said contractor, Paul, and the said commissioner, has been constructed by the use of said machine in manner and form as above stated. The defendant avers that said ditch so constructed has been entirely obliterated, and has destroyed the lines, courses, metes and bounds, plans and specifications adopted by said court, and ordered and adjudged as the lines, courses, metes and bounds, plans and specifications for the construction of said ditch, so that the same can not now be, nor can it hereafter be, made to conform with the plans and specifications adopted for the construction of said ditch; that the said contractor and the said relator, commissioner, have, in the construction of said work, destroyed said ditch, and made it absolutely impossible ever to be constructed in manner and form as ordered and adjudged by the court; that on account of the great depth to which said ditch has been cut and constructed by the said contractor and the said relator, and the banks thereof having been cut perpendicularly and in a concave manner, and the water having been retained therein for the floating of said machine, the said banks have broken, caved and crumbled so that in many places the said ditch is now forty to fifty feet in width, where the same...