Rinker v. Hahn

• Decision Date: 28 October 1910
• Docket Number: No. 21,517.,21,517.
• Citation: 175 Ind. 88,92 N.E. 729
• Parties: RINKER et al. v. HAHN et al.
• Court: Indiana Supreme Court

175 Ind. 88

92 N.E. 729

RINKER et al.

v.HAHN et al.¹

No. 21,517.

Supreme Court of Indiana.

Oct. 28, 1910.

On rehearing. Affirmed.

For former opinion, see 91 N. E. 741.

MONTGOMERY, J.

On April 12, 1909, appellees filed with the clerk of the Huntington circuit court a petition to cause an open ditch previously constructed by proceedings in that court to be tiled for a distance less than two miles in length, and alleged 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 proceeding 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 30 days. On May 12th 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 27th, and notices thereof duly issued, served on May 17th, and proof of service made and filed on May 22d. The demurrer of appellant George E. Rinker to the petition was submitted to the court and overruled May 28th, and on the following day other appellants demurred to the petition, which demurrer was subsequently overruled. On May 29th 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 striken out on appellees' motion, and on the grounds that it was unauthorized and not filed within the time allowed by law. On June 15th two of the appellants filed several 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 appellant's position, that is the ground of attack upon the petition.

Section 19 of the act of 1907 concerning drainage (Acts 1907, p. 535; section 6174, Burns' Ann. St. 1908), authorizing the tiling of existing open drains, provides for the filing of a petition therefor with the court of the county-that is circuit, superior, or 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 through the Huntington circuit court, and 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 17 and 19 of the drainage act of 1907, and was clearly sufficient.

The matter of investigating and reporting upon the proposed improvement was referred to the county surveyor, as above shown, immediately and without notice to the parties likely to be affected. His report was filed May 12th, and the hearing thereon fixed for the 27th, and the interested parties notified accordingly. Counsel for appellees contend that the time given within which remonstrances must be filed is to be reckoned from May 12th, the date of filing the surveyor's report. This contention cannot be sustained. Appellants had no notice of the proceeding until May 17th, and under the law were entitled to 10 days in which to make preparation for the hearing, which was set for the 27th. 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 to 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 20 days, exclusive of Sundays, from the day set for the docketing of the petition, and a...