Rayl v. Kirby

• Decision Date: 09 December 1913
• Docket Number: 22,234
• Parties: Rayl et al. v. Kirby et al
• Court: Indiana Supreme Court

103 N.E. 440

180 Ind. 561

Rayl et al. v. Kirby et al

No. 22,234

Supreme Court of Indiana

December 9, 1913

Original Opinion of June 20, 1913, Reported at: 180 Ind. 553.

OPINION

Myers J.

An ingenious argument is presented by the learned counsel for appellants as to the construction to be given the phrase in the drainage law, respecting the general remonstrance, "two-thirds in number of landowners named as such in such petition or who may be affected by any assessment or damages" (damaged), and it is urged that it means that a remonstrance is sufficient if signed by two-thirds either of those named in the petition, or of those who are affected by an assessment for the drain, and if this be not so, it is asked what meaning, or intent is to be ascribed to the words "named as such in such petition," and that by our original opinion we disregard these words, and legislate them out of the statute.

The argument is, that petitioners may name whom they please in the petition, and by notifying only those persons, place them alone on their guard, and, Should the silence of persons who do not legally know of the proceeding have the same weight as those who are notified, and actively approving, and the silent voice be as effective as the notified, active voice? The contention of appellants is, that a remonstrance by two-thirds of those named in the petition is sufficient, irrespective of the number of those to be affected by the assessment, or damaged. That by giving remonstrators the alternative, the best interests of all will be worked out. The theory in this last particular is, that petitioners will know that by naming, and notifying as many as possible, the larger remonstrance will be required, and more publicity given. On the other hand, if the petitioners name in their petition a large number of people who are in fact not interested, this evil would be met by requiring the remonstrance to contain merely two-thirds of those who may in fact be affected by assessment, or damaged. We have put these questions as appellants state them.

Appellants' argument in the last particular, proves too much. Under that theory, persons through whose lands a ditch may run might not be made parties, might not be benefited, but might be damaged. Yet they are necessary parties to authorize the construction of the drain through their lands, and on appellants' theory are powerless, except to remonstrate after a report is made, or to make themselves parties by some affirmative act. It is to meet such possible cases, as well as others, that the provision is made for remonstrating by those who may be affected by any assessment, or damages (damaged). If the number on the petition only is to be the guide, what use for adding the disjunctive phrase, because under that theory parties perfectly well known, as likely to be affected, or in the language of the act, "who may be affected by any assessment or damages" (damaged) may be omitted from the petition, yet under appellants' contention whether they will be "affected by any assessment or damages" must be postponed until a report is in, or they must come in affirmatively as parties. But it had been held under the act of 1885, which provided for remonstrance by two-thirds of those named in the petition resident in the county or counties, that when parties not named in the petition were brought in after report of the commissioners, remonstrances could not be filed by the original, and the new parties, even though they constituted two-thirds of the persons affected. Yancey v. Thompson (1892), 130 Ind. 585, 30 N.E. 630. This case was followed on that point in Zumbro v. Parnin (1895), 141 Ind. 430, 40 N.E. 1085, and the doctrine was extended to hold that one may become a party within the ten days, on showing that his lands would be affected, and that he might join in a two-thirds remonstrance, and this case is cited in Cambria Iron Co. v. Union Trust Co. (1899), 154 Ind. 291, 296, 55 N.E. 745, 56 N.E. 665, to the point that it is the spirit of the code to let one not a party, and having an interest in the subject-matter of an action come in, for the protection of whatever right he may have. In Keiser v. Mills (1904), 162 Ind. 366, 69 N.E. 142, it was again held that parties brought in by the report for the first time, could not defeat a proceeding by a two-thirds remonstrance.

The statute conferring two-thirds remonstrance on persons named as landowners in the petition continued until 1903 (Acts 1903 p. 504), when the right to a two-thirds remonstrance...