Ross v. Davis

• Decision Date: 16 May 1884
• Docket Number: 11,091
• Parties: Ross et al. v. Davis et al
• Court: Indiana Supreme Court

97 Ind. 79

Ross et al. v. Davis et al

No. 11,091

Supreme Court of Indiana

May 16, 1884

Petition for a Rehearing Overruled Sept. 25, 1884.

From the Harrison Circuit Court.

B. P Douglass, S. M. Stockslager and W. C. Green, for appellants.

W. N Tracewell and R. J. Tracewell, for appellees.

OPINION

Black, C.

On the 1st of November, 1881, the appellees filed their petition for the construction of a ditch, pursuant to the act of April 8th, 1881, Acts 1881, p. 397; R. S. 1881, section 4273, et seq. At the next term of the court the appellant Ross appeared and moved to dismiss the petition. The motion was overruled. The petitioners having made proof by affidavit that notice of the intention to present the petition had been posted, as provided by the statute, the court heard the matter and referred it to the commissioners of drainage, who, at the next term, made their report, favorable to the construction of the ditch. The appellant Ross moved to set aside the submission of the matter to the commissioners. The motion was overruled. Thereupon said Ross filed his remonstrance. The court sustained the remonstrance as to the second and eighth statutory causes of remonstrance stated therein, and ordered that the commissioners correct and amend their report as to the description of the commencement and route of the proposed ditch, and that they review the matter and make a new report upon the question as to whether the work decided upon was or was not sufficient to properly drain the lands to be affected. At the same term the commissioners filed their amended report.

At the next term Arthur J. Cunningham and Charles Eberinz, the appellants other than said Ross, filed their joint remonstrance. The appellant Ross also filed his remonstrance to the amended report.

The appellants jointly, and the appellant Ross separately, moved that a jury be called to try the questions of fact raised by the remonstrances. The motions were overruled, and the court tried the cause and found for the petitioners, that the material allegations of the petition were true, and found against the remonstrants on all the grounds assigned by them, except as to the fourth statutory cause of remonstrance as assigned by the appellant Cunningham, as to which cause the court found in his favor, that the assessment of benefits ought to be modified and equalized so as to show that his lands would not be benefited, and that the assessment against his lands should be taken off and the amount thereof should be placed on the lands of other persons named, as described in the petition, a certain portion on the lands of one person and the remainder on the lands of another. And the court found that the ditch would be of public utility, and that it would be practicable to accomplish the proposed drainage mentioned in the report of the commissioners at an expense less than the aggregate benefits to the lands which it would drain, and that the ditch set out and described in the amended report of the commissioners, describing it, ought to be established, and that the assessments made by the commissioners, except as so modified by the court, ought to be approved, setting out the same as so modified.

The appellants jointly moved for a venire de novo, and this motion having been overruled, the appellants jointly, and the appellant Ross separately, made motions for a new trial, which were overruled.

The court thereupon made its order establishing the ditch, describing it as in the amended report and in the finding, modifying the assessment of benefits as in the finding indicated, and approving and confirming the assessments as thus modified. And the court directed one of the commissioners named to construct the ditch in accordance with the provisions of said statute.

The appellants jointly have assigned as errors:

"1. That the court below did not have jurisdiction of the subject of the action.

"2. That the petition does not state facts sufficient to constitute a cause of action.

"3. That the petition does not state facts sufficient to entitle the appellees to any relief.

"4. That the petition is not according to law.

"5. That the original report of the commissioners of drainage is not according to law.

"6. That the amended report of the commissioners of drainage is not according to law.

"7. That the court below erred in overruling the motion for a venire de novo.

"8. That the court below erred in overruling the motion for a new trial."

The appellant Ross has made a separate assignment, containing the same specifications as those contained in the joint assignment, numbered somewhat differently, and two additional specifications numbered 4 and 5, as follows:

"4. That the court below erred in overruling said appellant's motion to dismiss the petition.

"5. That the court below erred in overruling said appellant's motion to set aside the submission of this matter to the commissioners of drainage."

These additional specifications in the separate assignment of the appellant Ross may be disposed of by saying that the grounds of the motions mentioned in them are not shown by bill of exceptions, and that, therefore, no question is before us concerning the rulings upon those motions. The other specifications in the separate assignment of the appellant Ross need no discussion apart from the corresponding specifications in the joint assignment.

The only question argued under the first four of these specifications is that of the constitutionality of the statute under which the proceeding was had; and without any inquiry as to the sufficiency of the specifications, we will examine briefly the objections made under them.

It is insisted that the provisions for the construction of drains made in the statute are intended for private benefit only. Although the proceedings for the construction of a drain under the statute, such as the appellees instituted, can be commenced only by an owner or owners of lands which will be...