Rogers v. Voorhees

• Decision Date: 17 May 1890
• Docket Number: 15,503
• Citation: 24 N.E. 374,124 Ind. 469
• Parties: Rogers et al. v. Voorhees et al
• Court: Indiana Supreme Court

24 N.E. 374

124 Ind. 469

Rogers et al. v. Voorhees et al

No. 15,503

Supreme Court of Indiana

May 17, 1890

Petition for a Rehearing Overruled June 25, 1890.

From the Vigo Circuit Court.

The judgment is affirmed, with costs.

U. J Hammond, E. S. G. Rogers and B. V. Marshall, for appellants.

W. W Rumsey, for appellees.

OPINION

Mitchell, C. J.

The only question involved in this appeal is whether or not in case the original assessment of benefits made in a drainage proceeding instituted under the act of April 6th, 1885, proves inadequate to complete the work, it is competent for the court, upon due petition and notice, to refer the matter to the commissioners of drainage, or if they be for any reason incompetent to act, to new commissioners for the purpose of reassessing benefits, in order to complete the work, or pay the deficit in case the work has been completed. The act concerning the drainage of wet lands makes two propositions clear beyond doubt or dispute: 1. That the lands benefited must bear the entire burden of the costs, damages and expenses of effecting the drainage, and 2. That no land can be assessed for an amount in excess of the benefits which actually accrue to it. Whenever it is made to appear that the costs, damages and expenses of effecting the drainage exceed the benefits to be derived therefrom it is the duty of the court to suspend further proceedings.

The drainage of the land can not be deemed fully accomplished nor the proceeding ended, until the drain has been completed according to the plans and specifications on file, and the expenses of constructing the work, and the costs and damages necessarily incident thereto have been paid, and until the commissioner having charge of the work has made his final report, and an order discharging him has been made by the court. Until this is done the proceeding remains under the control of the court. Steele v. Hanna, 117 Ind. 333, 20 N.E. 237. An attentive reading of the act referred to, keeping in view the scope and purpose of the statute, and that it is to be liberally construed so as to promote the end for which it was enacted, makes it manifest that while the proceeding remains under its control the court has large discretion in respect to modifying, equalizing and changing assessments. It is a reasonable supposition that the Legislature must have anticipated that expenses and deficits arising from floods, mistakes,...