Sauntman v. Maxwell
| Decision Date | 27 June 1899 |
| Docket Number | 18,818 |
| Parties | Sauntman et al. v. Maxwell et al |
| Court | Indiana Supreme Court |
Rehearing Denied Jan. 26, 1900.
From the Jay Circuit Court.
Affirmed.
W. H Williamson, S. A. D. Whipple, A. C. Harris and J. R. Wilson for appellants.
D. T. Taylor and O. H. Adair, for appellees.
Baker, J. Monks, J., did not participate in this decision.
On September 10, 1896, appellants filed a petition for drainage under the act of 1885 as amended in 1889. Acts 1885, p. 129; Acts 1889, p. 285, § 5622 et seq. Burns 1894, § 4273 et seq. Horner 1897. The proposed drain would affect about 100,000 acres in Jay and Blackford counties and would pass through the corporate limits of the city of Portland. The method to be employed was the straightening and deepening of the Salamonie river. The petition named 2,763 persons whose lands would be affected, of whom 533 were nonresidents. Demurrer on the grounds that the court did not have jurisdiction of the subject-matter and that the petition did not state sufficient facts was overruled. On this, cross-error is assigned. Appellees filed a remonstrance signed by 1,499 landowners named in the petition and 186 who were admitted as parties. Appellants' motion to strike out this remonstrance was overruled. The court refused to allow appellants to file a verified pleading attacking the sufficiency of the remonstrance. The issues made by the petition and remonstrance were tried by the court and, upon proper request, a special finding of facts was made and conclusions of law were stated thereon. Appellants excepted to the conclusions of law. Judgment dismissing the petition was rendered. Appellants' motions for a venire de novo and for a new trial were overruled.
The determination of the questions presented depends mainly upon the meaning of section two as amended in 1889 and section three of the drainage act of 1885. Section two directs how and by whom the petition is to be made. Section three provides for filing the petition in the clerk's office, for giving notice, for docketing the cause after notice thereof, for the allowance of ten days after docketing in which landowners may object to the form of the petition and the competency of the drainage commissioners, and for a hearing of such objections at the end of the ten days. Next follows this proviso: "Provided, that if at this stage of the proceedings [within ten days after the cause is docketed] two-thirds in number of the landowners named as such in such petition, resident in the county or counties where the lands affected are situated, shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed at the cost of the petitioner." The part of section two, as adopted in 1885, necessary for consideration, reads: "Whenever any owner or owners of any separate and distinct tract or tracts of land which would be benefited by the same drainage, which can not be accomplished in the best and cheapest manner without affecting other lands shall desire such drainage, he or they may apply for such drainage by petition to the circuit court or superior court of the county in which the lands of the petitioner or petitioners are situated." This part of section two was amended in 1889 so as to read: "Whenever any owner or owners of any separate and distinct tract or tracts of land lying outside the corporate limits of any city or town in this State which would be benefited by drainage, and which can not be accomplished without extraordinary labor and expense as determined by the court: Provided, also, that where such drain passes through the corporate limits of such city or town, the same shall be located in, upon and along the streets or alleys thereof whenever the same may be practicable, without affecting other lands shall desire such drainage, or (drainage) which can not be accomplished in the best and cheapest manner without passing through the corporate limits of such city or town, such owner or owners may apply for such drainage by petition to the circuit court or superior court of the county in which the lands of the petitioner or petitioners are situated." The first and third groups of italicized words were added as new matter. The second group was substituted, while the bill was pending in the Senate, for the words "in the best and cheapest manner". Senate Journal 1889, p. 362. At the end of the section, as amended in 1889, there was added: "Provided, that in all cases where such drain passes through the corporate limits of any city or town, as in this section provided, affecting the lands in such city or town, [if] two-thirds in number of the landowners named as such in such petition and representing or owning two-thirds of the lands affected by such drain in the county or counties where the lands affected are situated, shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed at the cost of the petitioners." Section two as adopted in 1885 contained nothing of this nature, and the only provision for the dismissal of the petition if two-thirds of the landowners opposed the drainage was the proviso above quoted from section three. The case of Anderson v. Endicutt, 101 Ind. 539, was decided April 8, 1885. It held that the cities of this State had exclusive jurisdiction of the matter of drainage within their limits and that there was no authority for the construction of drains in cities by drainage commissioners under the direction of the circuit court. The decision was made with reference to the circuit court drainage act of 1881 as amended in 1883. §§ 4273-4284 R. S. 1881; Acts 1883, p. 173. The act of 1885 repealed the act of 1881. The part of section two of the act of 1885, above quoted, is identical with the corresponding part of section two of the act as adopted in 1881 and amended in 1883. It is probable that the act of 1885 was amended in 1889 by reason of the Anderson decision.
Appellees, in support of their demurrer on the ground that the court did not have jurisdiction of the subject-matter, urge that the amendatory act of 1889 violates section 20 of article 4 of the Constitution, which reads: "Every act and joint resolution shall be plainly worded, avoiding as far as practicable the use of technical terms." No technical terms are used and the act is plainly worded. The difficulty, so far as any exists, lies rather in the structure of the sentences. But, by considering the act of 1885, the Anderson decision, and the new matter added by the amendatory act of 1889, it becomes plain that the object of the legislature of 1889 was to provide for drainage in an exceptional class of cases. Prior to that time circuit courts had jurisdiction of drains that lay wholly in the country; cities had exclusive jurisdiction of drainage within their limits and might provide an outlet beyond their limits; but there was no provision for draining country lands in case no outlet was available, without extraordinary labor and expense, except through the corporate limits of a city. The amendatory act of 1889 was obviously enacted to remedy this condition.
Appellees also contend that it was beyond the power of the legislature to give circuit courts jurisdiction over drains that would extend through cities. The previous exclusive jurisdiction of the common council over drainage within the corporate limits was granted by the legislature. That grant was subject to withdrawal or modification. Moreover, the matter of drainage in country and city conjointly never was within the jurisdiction of common councils. It was a new subject-matter, an exceptional situation that the legislature of 1889 discovered was not provided for by then existing statutes. It was within the legislature's discretion to lodge jurisdiction of this new matter where it saw fit.
Appellees insist that the court did not have jurisdiction because the petition disclosed that a river was to be improved, straightened and deepened. If the object of straightening a water course is to prevent the banks from washing, to protect a highway, to avoid the construction of a bridge, or the like, it is decided that the boards of county commissioners have exclusive jurisdiction. Scruggs v. Reese, 128 Ind. 399, 27 N.E. 748. But if the object is the drainage of wet lands and the improvement of the water course is merely a means to that end, the drainage act of 1885 gives the necessary power to the circuit courts. Lipes v. Hand, 104 Ind. 503, 1 N.E. 871. The petition avers that numerous bodies of land, particularly described, will be benefited by the proposed drainage; that many highways and streets will be improved; that the public health will be promoted; and that the proposed results can most readily be accomplished by straightening and deepening the river and constructing lateral drains.
Appellees, in support of their demurrer on the ground that the petition does not state sufficient facts, argue that the petitioners should have alleged the particular circumstances by reason of which the proposed drainage could not be accomplished, without extraordinary labor and expense and in the best and cheapest manner, except by passing through the corporate limits of Portland. The averments that public health will be promoted, highways improved, lands benefited, and that construction is impracticable except by going through the limits of the city, are averments of fact. To set out the circumstances that would prove these allegations to be true, would be pleading evidence.
The main contention of appellants is that the conclusion of law on the special finding is wrong. The court found that 2,763 landowners named in the petition were before the court; that 733 of these were...
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