Rankin v. McCollister

• Decision Date: 16 December 1910
• Docket Number: 21,580
• Citation: 93 N.E. 209,175 Ind. 387
• Parties: Rankin et al. v. McCollister et al
• Court: Indiana Supreme Court

93 N.E. 209

175 Ind. 387

Rankin et al. v. McCollister et al

No. 21,580

Supreme Court of Indiana

December 16, 1910

Rehearing Denied March 16, 1911.

From Jay Circuit Court; John F. LaFollette, Judge.

Drainage petition by William E. McCollister and others against which Rebecca A. Rankin and others remonstrate. From a judgment for petitioners, remonstrants appeal.

Affirmed.

Smith & Moran and Roscoe D. Wheat, for appellants.

Frank H. Snyder and Whitney E. Smith, for appellees.

OPINION

Monks J.

This proceeding was brought in the court below by appellees to construct a public drain under the act of 1907 (Acts 1907 p 508, § 6140 et seq. Burns 1908).

This appeal was taken under § 6143, supra, from the judgment establishing said work and approving and confirming the assessments.

At the proper time appellants filed what is known as a two-thirds remonstrance against the construction of said drain under the first proviso of § 6142, supra.

The court, on request of the remonstrators, appellants in this court, made a special finding of facts and stated conclusions of law thereon. The conclusions of law were to the effect that said remonstrance was not signed by two-thirds in number of the landowners possessing the qualifications required by § 6142, supra.

The burden was on appellants to prove that said remonstrance was signed by two-thirds in number of the landowners possessing the qualifications required by said section. As to seventy-eight of the signers of said remonstrance, it was found that their names "are not in the petition and their lands are not described" therein, and that from their said lands "surface-water, by natural and artificial courses, finally flows into the proposed drain," but that they have shown residence in one or the other counties in which it is proposed to construct said drain.

Said § 6142 requires that the remonstrance, to be sufficient to defeat the construction of the drain, must be signed by "two-thirds in number of the landowners named as such in such petition, or who may be affected by any assessment or damages, resident in the county or counties where the lands affected are situated." See Thorn v. Silver (1910), 174 Ind. 504, 89 N.E. 943.

There is nothing in said finding to show that the lands of said seventy-eight remonstrators will "be affected by any assessment or damages." We cannot say as a matter of law, merely from the fact found--that surface-water from the lands of said...