Shields v. Pyles , No. 21,750.

Docket NºNo. 21,750.
Citation180 Ind. 71, 99 N.E. 742
Case DateOctober 30, 1912
CourtSupreme Court of Indiana

180 Ind. 71
99 N.E. 742

SHIELDS et al.
v.
PYLES et al.1

No. 21,750.

Supreme Court of Indiana.

Oct. 30, 1912.


Appeal from Circuit Court, Jackson County; David A. Kochenour, Special Judge.

Petition by Jesse Pyles and others for the drainage of certain lands and highways. From a judgment confirming assessments of commissioners establishing a drain and appointing construction commissioners, and from the overruling of joint and several motions for a new trial, Ewing Shields and others, remonstrators, appeal. Reversed, with directions to sustain motions.

[99 N.E. 743]


Frank S. Jones, of Columbus, Thomas M. Honan, of Indianapolis, and Lewis & Swails, of Seymour, for appellants.
John H. Kamman, of Seymour, and Frank Branaman and John Branaman, both of Brownstown, for appellees.

MYERS, J.

Appellee Pyles and 15 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.

[1] 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 (section 2, Acts 1907, p. 508; Burns 1908, § 6141) prescribes four classes of petitioners: (a) “Owners *** of lands *** 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 section 2, Acts 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 laying outside *** would be benefited.” By the general act of 1905 (Acts 1905, p. 456), and by section 2, 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 re-enacted in section 2 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.

[2] Public ditches, like public highways, are the subjects of the state's control, and it may delegate to interested persons or cities or 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., Co. v. Luddington (1910) 175 Ind. 35, 91 N. E. 939, 93 N. E. 273;Sauntman v. Maxwell (1899) 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 Twp. (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 section 2 providing, “whenever any owner or owners of any separate and distinct tract or tracts of land lying outside the corporate limits of any city

[99 N.E. 744]

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...

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22 practice notes
  • Rockey v. Hershman , No. 23636.
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1923
    ...Arensman, supra; Lake Agricultural Co. v. Brown, 186 Ind. 30, 114 N. E. 755;Wilson v. Tevis, 184 Ind. 712, 111 N. E. 181;Shields v. Pyles, 180 Ind. 71, 99 N. E. 742. In the case of Martin v. Adair, 189 Ind. 177, 126 N. E. 433, it was held that if the remonstrances were supported by sufficie......
  • Williams v. Osborne, No. 22,200.
    • United States
    • Indiana Supreme Court of Indiana
    • February 4, 1914
    ...new line is over the line of another established drain. Hauschild v. Roth (No. 22,021) 104 N. E. 11, at this term; Shields v. Pyles (1912) 99 N. E. 742, and cases cited; Sharp v. Eaton (1910) 175 Ind. 441, 94 N. E. 753, and cases cited; Denton v. Thompson, supra; Miller v. Logan Co. (1889) ......
  • Schilling v. Quinn, No. 21,979.
    • United States
    • Indiana Supreme Court of Indiana
    • November 1, 1912
    ...court, and it cannot be assailed in this court for the first time, on account of any of the objections stated in the assignment of error.” [99 N.E. 742]Midland R. Co. v. Dickason et al., 130 Ind. 164, 29 N. E. 775;Martin v. Martin, 74 Ind. 207. There being no reversible error in the record,......
  • State ex rel. Wheeler v. Leathers, No. 24923.
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1925
    ...it is nevertheless in its nature a civil action, and the Civil Code applies to supply omissions in the special act. Shields v. Pyles, 180 Ind. 71, 99 N. E. 742;Hart v. Scott, 168 Ind. 530, 81 N. E. 481; Stockton v. Ham, supra; Bass v. Elliott, supra; Karr v. Board, etc., 170 Ind. 571, 581, ......
  • Request a trial to view additional results
22 cases
  • Rockey v. Hershman , No. 23636.
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1923
    ...Arensman, supra; Lake Agricultural Co. v. Brown, 186 Ind. 30, 114 N. E. 755;Wilson v. Tevis, 184 Ind. 712, 111 N. E. 181;Shields v. Pyles, 180 Ind. 71, 99 N. E. 742. In the case of Martin v. Adair, 189 Ind. 177, 126 N. E. 433, it was held that if the remonstrances were supported by sufficie......
  • Williams v. Osborne, No. 22,200.
    • United States
    • Indiana Supreme Court of Indiana
    • February 4, 1914
    ...new line is over the line of another established drain. Hauschild v. Roth (No. 22,021) 104 N. E. 11, at this term; Shields v. Pyles (1912) 99 N. E. 742, and cases cited; Sharp v. Eaton (1910) 175 Ind. 441, 94 N. E. 753, and cases cited; Denton v. Thompson, supra; Miller v. Logan Co. (1889) ......
  • Schilling v. Quinn, No. 21,979.
    • United States
    • Indiana Supreme Court of Indiana
    • November 1, 1912
    ...court, and it cannot be assailed in this court for the first time, on account of any of the objections stated in the assignment of error.” [99 N.E. 742]Midland R. Co. v. Dickason et al., 130 Ind. 164, 29 N. E. 775;Martin v. Martin, 74 Ind. 207. There being no reversible error in the record,......
  • State ex rel. Wheeler v. Leathers, No. 24923.
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1925
    ...it is nevertheless in its nature a civil action, and the Civil Code applies to supply omissions in the special act. Shields v. Pyles, 180 Ind. 71, 99 N. E. 742;Hart v. Scott, 168 Ind. 530, 81 N. E. 481; Stockton v. Ham, supra; Bass v. Elliott, supra; Karr v. Board, etc., 170 Ind. 571, 581, ......
  • Request a trial to view additional results

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