Romack v. Hobbs

• Decision Date: 02 November 1892
• Citation: 32 N.E. 307
• Parties: ROMACK, County Surveyor, v. HOBBS et al.
• Court: Indiana Supreme Court

32 N.E. 307

ROMACK, County Surveyor,

v.HOBBS et al.¹

Supreme Court of Indiana.

Nov. 2, 1892.

Appeal from circuit court, Tipton county; Daniel Waugh, Judge.

Application by Jacob B. Hobbs and others to be relieved from an assessment levied by James L. Romack, county surveyor, to reimburse the county for expenses incurred in repairing a public ditch. Relief granted. Defendant appeals. Affirmed.

Gifford & Fippen and W. R. Ogleboy, for appellant. Waugh & Kemp and Beauchamp & Mount, for appellees.

Elliott, J.

The appellees sought to be relieved from an assessment levied by the appellant in his capacity as surveyor to reimburse the county for expenses incurred in repairing a public ditch. The authority of the surveyor in such a case as this is a special, statutory one, and must be exercised in substantial conformity to the statute. Statutes conferring authority to levy special assessments must be strictly construed. In re Second Ave. Church, 66 N. Y. 395;Griswold v. Pelton, 34 Ohio St. 482;Niklaus v. Conkling, 118 Ind. 289, 20 N. E. Rep. 797. See authorities cited in Elliott, Roads & S. 371, 372. The statute from which the appellant derives his authority reads thus: “After the construction of said work the county surveyor of the county in which the proceedings were had shall keep the same in repair to the full dimensions as to width and depth as required in the original specifications.” The acts of 1875 and of 1885 are substantially the same upon this subject. Elliott, Supp. § 1193. It is therefore not important to which of the two acts we look to ascertain the surveyor's authority. The authority to levy assessments is confined to the repair of ditches, and does not extend to the construction of new ones. The word “repair,” by its own force and vigor, repels the implication that there is authority to construct new drains. See authorities cited in Elliott, Roads & S. 336. But the words with which it is associated restrict its meaning by requiring the surveyor to do the work, as to width and depth, “as required by the original specifications.” It may be that time and the elements may render it practically impossible to restore a ditch to its original condition, and where this is true some deviations from the original specifications may properly be made by the surveyor without vitiating his assessment. Weaver v. Templin, 113 Ind. 298-302, 14 N. E. Rep. 600. The rule that a statute granting special authority to repair a ditch or highway is to be strictly construed does not mean that the construction shall be so rigorously strict as to defeat the object it was designed to accomplish. There can be no doubt that a surveyor who undertakes to repair a public ditch at the expense of adjacent landowners must conform as nearly as practicable to the statute from which he derives his authority. This duty requires him to examine the original specifications for the construction of the ditch which he undertakes to restore to its former condition, and to follow such specifications as nearly as it is practically possible for him to do in the exercise of skill, diligence, and care. It is probably true that under the act of 1875 the specifications made by the viewers as to the dimensions of the ditch must be regarded as the original specifications. Acts 1875, p. 97. We are inclined to agree with appellant's counsel that, if the surveyor had examined and followed the specifications of the viewers, his assessment should be sustained; but we cannot agree that the evidence shows that he did follow those specifications. We find evidence in the record strongly tending to show that he did not follow the specifications. We find, indeed, in his own testimony, statements tending to show that he did not follow them, because, as he says, they were not of such a character as made it practicable to follow them with substantial strictness. Where there are no specifications of record or in the proper custody, the safe and proper course for the surveyor is to give notice to the parties interested, and by appropriate proceedings have lost specifications replaced. We cannot agree with the appellees' counsel in their contention that, after a ditch has been constructed, and the proceedings closed, the validity of the original proceedings may be assailed in a case where the appeal is from the decision of the surveyor levying an assessment for the cost of repairing a ditch. We do not sustain the finding of the trial court upon that theory. A surveyor has no authority to complete a ditch left uncompleted by those whose duty it was to construct it. His duty, under the statute, is to repair, not to construct. That the surveyor widely departed from this duty in this case is evidenced by the fact that the original cost of the ditch was $2,200, while the aggregate amount of the assessments levied for what he alleged were repairs is $2,700. This fact, we may add, tends strongly to prove that he did not adhere to the original specifications. The surveyor had no right to take it upon himself to decide that the original ditch was not properly constructed. That was a question to be decided by other officers. A surveyor cannot justify his action in making repairs and levying an assessment for repairs upon the ground that part of the original proceedings were void. But in assuming, as counsel do, that part of the original proceedings were void, they fall...