Shields v. Pyles

• Court: Indiana Supreme Court
• Writing for the Court: Myers, J.
• Citation: Shields v. Pyles, 180 Ind. 71, 99 N.E. 742 (Ind. 1912)
• Decision Date: 30 October 1912
• Docket Number: 21,750
• Parties: Shields et al. v. Pyles et al

99 N.E. 742

180 Ind. 71

Shields et al. v. Pyles et al

No. 21,750

Supreme Court of Indiana

October 30, 1912

Rehearing Denied June 26, 1913.

From Jackson Circuit Court; David A. Kochenour, Special Judge.

Petition by Jesse Pyles and others for the establishment of a drain. From a judgment confirming the assessments of the drainage commissioners, establishing the drain and appointing a construction commissioner, Ewing Shields and others appeal.

Reversed.

Frank S. Jones, Thomas M. Honan and Lewis & Swails, for appellants.

John H Kamman, Frank Branaman and John Branaman, for appellees.

OPINION

Myers, J.

Appellee Pyles and fifteen other landowners filed on September 30, 1907, a petition in the Jackson Circuit Court for the drainage of certain lands and highways. Such proceedings were thereafter had without any objection interposed, that on November 25, 1908, a report of commissioners was filed, reporting the proposed work to be of public utility, to be practicable, and that it would improve the public health, and benefit highways and free gravel roads, and that the costs would be less than the benefits to the lands assessed. By that report additional lands to those named in the petition were brought in and assessed, and the court ordered notice to be given such landowners, and the cause was continued until December 11, 1908. On the latter date several of the persons whose lands had been assessed filed so-called pleas in abatement. They also, with others, filed statutory remonstrances, and on May 28, 1909, filed additional and supplemental remonstrances, setting up by a special paragraph, in addition to the statutory grounds for remonstrating, practically the same matters set up in the alleged pleas in abatement, but somewhat more fully. The pleas in abatement were stricken out on motion of the petitioners, on May 17, 1909. There was a trial and finding confirming the assessments of the commissioners, and over joint and several motions for a new trial, judgment was rendered, approving the assessments, establishing a drain, and appointing a construction commissioner, from which judgment this appeal is prosecuted.

Coming first in chronological order, is the question of the insufficiency of the petition assigned as error, the first point being that it does not appear that the lands were wholly outside the limits of a city or incorporated town; the appellants' contention being that "only those who own separate and distinct tracts of land lying wholly outside the limits of cities and towns" may petition for drains.

The statute (§ 2 Acts 1907 p. 508, § 6141 Burns 1908) prescribes four classes of petitioners, (a) "owners * * * of land * * * outside the corporate limits of any city or town", (b) "township trustees * * * for drainage of a public highway or the grounds of a public school", (c) "the common council of any incorporated city", (d) "the board of trustees of any town" for the drainage of school grounds or highways. The act was plainly intended as an enlargement of the power of petitioning, and not as restricting it. It is apparent that there may be as much necessity for the exercise of the power in case of cities or towns or township trustees, as in case of purely agricultural lands, or lands outside of cities or towns, for the drainage of the latter may be closely related to and affect lands in a city or town, and necessary drainage in the latter, or by a township trustee may be closely related to and affect agricultural lands, or lands outside a city or town. These possible correlated conditions of lands to cities and towns, and vice versa, first received recognition in an act of 1889 (Acts 1889 p. 285), amending § 2 of the act of 1885, so as to authorize outside landowners to drain through cities and towns affected, and in 1901 it was again amended (Acts 1901 p. 162), and in 1903 (Acts 1903 p. 252), an amendment was added in the form of a proviso, providing that common councils and trustees of towns might petition "when land lying outside * * * would be benefited." By the general act of 1905 (Acts 1905 p. 456), and by § 2, supra, this last enactment was withdrawn as a proviso, and common councils and trustees of towns and township trustees, placed in the same class as agricultural, or other landowners outside of cities or towns, and this section was practically reenacted in § 2, supra, of the act of 1907, and both reason and the statute itself leave no room for doubt, that a power was conferred upon the four classes named.

Public ditches, like public highways, are the subjects of the State's control, and it may delegate to interested persons, or cities and towns, or other officials, the power of initiative, and declare the extent of jurisdiction. They are matters of state concern, and the exercise of a function of the State. Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 91 N.E. 939, 93 N.E. 273; Sauntman v. Maxwell (1900), 154 Ind. 114, 54 N.E. 397; Kunkalman v. Gibson (1909), 171 Ind. 503, 84 N.E. 985, 86 N.E. 850; City of Martinsville v. Washington Tp. (1910), 46 Ind.App. 200, 92 N.E. 191; Thorn v. Silver (1910), 174 Ind. 504, 89 N.E. 943, 92 N.E. 161. The reason for the language used in § 2, supra, providing, "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" is not far to seek. Cities and towns with the exception created by statute, are by general statute, given exclusive control over streets and highways therein, hence there was no authority originally under the drainage act for landowners outside of cities and towns, constructing drains through them, and the language restricting such petitions to lands outside cities and towns, was necessary in view of the law as it then was. Later enactments, as shown above, changed this condition so as to permit this to be done, and also enlarged the powers of cities and towns, and township trustees, to petition when outside landowners were affected, thus making the conditions for petitioning mutual, though distinct, even though petition by either may affect the other.

The specific objection to the petition is that it does not allege that the lands lie outside a city or town. It does not appear by the petition that they are in a city or town, and we take judicial notice of the location of cities and incorporated towns, and that there is no city or incorporated town upon any of the land described in the petition. Swails v. State (1853), 4 Ind. 516; Indianapolis, etc., R. Co. v. Case (1860), 15 Ind. 42; Indianapolis, etc., R. Co. v. Stephens (1867), 28 Ind. 429; Louisville, etc., R. Co. v. McAfee (1896), 15 Ind.App. 442, 43 N.E. 36; Wasson v. First Nat. Bank (1886), 107 Ind. 206, 219, 8 N.E. 97; State, ex rel. v. Gramelspacher (1890), 126 Ind. 398, 402, 26 N.E. 81; Mode v. Beasley (1896), 143 Ind. 306, 42 N.E. 727; Terre Haute, etc., R. Co. v. Pierce (1884), 95 Ind. 496; Adams v. Harrington (1888), 114 Ind. 66, 14 N.E. 603; Smith v. Clifford (1884), 99 Ind. 113, 115; Louisville, etc., R. Co. v. Hixon (1885), 101 Ind. 337; Sever v. Lyons (1897), 170 Ill. 395, 48 N.E. 926; People, ex rel. v. Suppiger (1882), 103 Ill. 434. Also that judicial notice will be taken of a negative as well as of an affirmative proposition of fact. Harding v. Third Presbyterian Church (1863), 20 Ind. 71; Ross v. Faust (1876), 54 Ind. 471, 23 Am. Rep. 655; Peck v. Sims (1889), 120 Ind. 345, 22 N.E. 313; Chicago, etc., R. Co. v. Smith (1893), 6 Ind.App. 262, 33 N.E. 241; Wasson v. First Nat. Bank, supra; Jackson v. State (1862), 19 Ind. 312.

The question is also sought to be presented for the first time by an assignment of error of the insufficiency of the petition, which is too late after judgment. Plew v. Jones (1905), 165 Ind. 21, 74 N.E. 618.

It has been held repeatedly, with respect to highway and drainage petitions, that all jurisdictional facts need not appear in the petition, but may be shown by evidence. Aetna Life Ins. Co. v. Jones (1909), 173 Ind. 149, 89 N.E. 871, and cases cited; Hall v. McDonald (1908), 171 Ind. 9, 85 N.E. 707, and cases cited; Conaway v. Ascherman (1884), 94 Ind. 187; Watson v. Crowsore (1884), 93 Ind. 220; Brown v. McCord (1863), 20 Ind. 270. And it has been held in such cases that if the qualified petitioners have not signed, the question should be presented by remonstrance. Bronnenburg v. O'Bryant (1894), 139 Ind. 17, 38 N.E. 416.

On its face the petition does not disclose that the lands are not outside the limits of a city or incorporated town, and on its face is good, even if it was necessary to confer jurisdiction that there be petitioners owning land outside the city or town. Pavey v. Braddock (1908), 170 Ind. 178, 84 N.E. 5; Kemp v. Adams (1905), 164 Ind. 258, 261, 73 N.E. 590; Heick v. Voight (1887), 110 Ind. 279, 11 N.E. 306.

The proposition presented by the remonstrance is, that in 1901, a ditch had been established by the board of commissioners, between the same termini, and over the same course, affecting the same lands in the same manner, to the same extent, and not differently from the proposed drain, and some of the landowners had paid their assessments, and others had expended large sums of money on construction, and that the order establishing the drain is in full force and effect. The petition on its face makes no reference to the construction being proposed over the line of another drain.

Appellees' position is (a) that a plea in abatement cannot be interposed in this class of cases, owing to there being no provision in the act for such plea; (b) that a pleading in bar is unauthorized in this class of cases. It has been held repeatedly that the provisions of the civil code, may be resorted to in special proceedings, when applicable to supply...