Rinker v. Hahn
| Decision Date | 28 October 1910 |
| Docket Number | 21,517 |
| Citation | 92 N.E. 729,175 Ind. 88 |
| Parties | Rinker et al. v. Hahn et al |
| Court | Indiana Supreme Court |
Rehearing Denied December 29, 1910.
From Huntington Circuit Court; Samuel E. Cook, Judge.
Drainage petition by Albert C. Hahn and others, against which George E. Rinker and others remonstrate. From a judgment for petitioners, remonstrators appeal.
Affirmed.
Watkins & Butler, for appellants.
John Q Cline, W. A. Branyan and Claude Cline, for appellees.
On April 12, 1909, appellees filed with the clerk of the Huntington circuit court a petition to cause an open ditch, previously constructed in pursuance of proceedings in that court, to be tiled for a distance less than two miles in length, alleging that the total cost of the contemplated work, exclusive of tile to be used, would not exceed $ 300, and that the surveyor of the county was not interested in the proceedings or related to the parties likely to be affected thereby. The matter was thereupon, by the clerk, referred to the county surveyor, with directions to make his report within thirty days. On May 12 the county surveyor made and filed his report in said court in term, in favor of the proposed improvement, with assessments of benefits against the lands affected. The hearing upon this report was fixed for May 27. Notices thereof were duly issued, were served on May 17, and proof of service was made and filed May 22. The demurrer of appellant George E. Rinker to the petition was submitted to the court and overruled May 28, and on May 29 other appellants filed demurrers to the petition, which demurrers were subsequently overruled. On May 29 appellants, representing that they constituted two-thirds in number of all persons to be affected by the proposed work, filed a remonstrance asking that the petition be dismissed. This remonstrance was stricken out on appellees' motion, on the grounds that it was unauthorized and not filed within the time allowed by law. On June 15 two of the appellants filed separate remonstrances for cause to the report of the surveyor, and these remonstrances were stricken out, on the ground that they were not filed within the time prescribed by law. The report of the county surveyor was thereupon approved, the assessments confirmed, and the drain established and ordered constructed; and from that judgment this appeal is prosecuted.
The overruling of appellants' demurrers and the striking out of their remonstrances have been properly assigned as errors.
No objection to the sufficiency of the petition has been called to our attention; but in the separate demurrer of appellant Rinker the jurisdiction of the court over the subject-matter is challenged, and, as we understand appellants' position, that is the ground of attack upon the petition.
Section nineteen of the act of 1907 concerning drainage (Acts 1907 p. 508, § 6174 Burns 1908) authorizes the tiling of existing open drains, and provides for filing a petition therefor with the circuit or superior court of the county, or the board of commissioners, as the case may be, in which the proceedings were had for the construction of the original ditch. The petition herein alleges that the drain to be tiled was originally constructed in pursuance of proceedings in the Huntington Circuit Court, and that that court had jurisdiction under the law over proceedings to make the change described in appellees' petition. The petition contained all formal and substantive allegations required under sections seventeen and nineteen of said drainage act of 1907 (§§ 6151, 6174 Burns 1908) and was clearly sufficient. The matter of investigating and reporting upon the proposed improvement was referred to the county surveyor, as heretofore shown, immediately and without notice to the parties likely to be affected. His report was filed May 12, and the hearing thereon fixed for May 27, and the interested parties were notified accordingly. Counsel for appellees contend that the time within which remonstrances must be filed is to be reckoned from May 12, the date of filing the surveyor's report. This contention cannot be sustained. Appellants had no notice of the proceeding until May 17, and under the law were entitled to ten days in which to make preparation for the hearing which was set for May 27. If this contention were correct, it would be possible to fix such a date in the future as to permit all defenses to be barred by lapse of time before notice of the hearing was served, and thus defeat the whole purpose of the hearing. In ditch proceedings under these and other provisions of the law, involving a drain more than two miles in length and a cost of over $ 300, the parties are brought in upon the petition in pursuance of notice and given a hearing before the matter is referred to the drainage commissioners for a report. In such cases, it is provided that a two-thirds remonstrance may be filed within twenty days, exclusive of Sundays, from the day set for the docketing of the petition, and a remonstrance for prescribed causes may be filed within ten days from the time of...
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