Smith v. State ex rel. Ingerman

• Decision Date: 29 January 1889
• Citation: 117 Ind. 167,19 N.E. 744
• Parties: Smith et al. v. State ex rel. Ingerman, Commissioner of Drainage.
• Court: Indiana Supreme Court

117 Ind. 167

19 N.E. 744

Smith et al.

v. State ex rel.Ingerman, Commissioner of Drainage.

Supreme Court of Indiana.

January 29, 1889.

Appeal from circuit court, Hamilton county; W. R. Pierse, Judge.

Action by the state on the relation of George W. Ingerman, commissioner of drainage, against Samuel M. Smith and others on the bond of Samuel B. Wells, as drainage commissioner. Defendants appeal. By Rev. St. Ind. 1881, § 559, “a new trial may be granted in the following cases: * * * Fourth. Excessive damages. Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property. * * *” The drainage act of 1881 (Rev. St. 1881, § 4273 et seq.) provides for a petition for the construction of a drain, and for referring the matter to the commissioners of drainage of the county. By section 3 (Rev. St. § 4275) the commissioners shall make personal inspection of the lands described in the petition and the lands of the petitioners, and shall consider certain questions, which being found in the negative, the petition shall be dismissed; but “if they find otherwise they shall proceed and definitely determine the best and cheapest method of drainage, the termini and route, location, and character of the proposed method, and fix the same by metes and bounds, courses and distances, and description, estimate the cost thereof,” etc., “and make report to the court, as directed, under oath.” Section 4 (Rev. St. § 4276) provides for a remonstrance and trial, and also for the modification of the report thereon, and that “if there be no remonstrance, or the finding and judgment shall be in all respects against the remonstrant, the court shall also make an order declaring the proposed work established, and approving the assessment, and shall direct some one of the commissioners to construct and make the proposed work.” Section 5 (Rev. St. § 4277) requires that “the commissioner charged with the execution of the work, as provided in the last preceding section, shall proceed to have the same constructed as ordered.”Kane & Davis, for appellants. Stephenson & Fertig, for appellee.

Coffey, J.

This was a suit in the Hamilton circuit court by the appellee against the appellants upon the following bond: “We, Samuel B. Wells, J. L. Benson, S. M. Smith, A. F. Brown, and F. A. Hawkins, are held and firmly bound unto the state of Indiana in the penal sum of five thousand dollars to be levied of our goods and chattels, lands and tenements, if default be made of the following conditions, to-wit: Whereas, by an act of the legislature of the state of Indiana, entitled ‘An act concerning drainage,’ approved April 8, 1881, it is provided that the circuit court of each county shall appoint two persons commissioners of drainage; and whereas, the above-named Samuel B. Wells has been appointed one of the commissioners for the county of Hamilton, state of Indiana: Now, if the above-bound Samuel B. Wells shall faithfully discharge his duties as such commissioner, and shall give an account, according to law, for all moneys that shall come to his hands as such commissioner, then the above obligation shall be void, else to be and remain in full force and virtue in law.”

It appears by the record in this cause that certain of the citizens of Hamilton county petitioned for the construction of a drain, and that such proceedings were had thereon as resulted in an order by the circuit court of that county directing that said drain be constructed according to the survey, plans, and specifications set forth in the report of the commissioners of drainage then on file in said court. The defendant Wells, who was one of said commissioners, was appointed by the court to collect the assessments necessary to defray the expenses, and to superintend the work. He entered upon the discharge of his duty, collected the assessments, amounting to $1,500, and continued in office until 1886, when he resigned, and the relator herein, who was the other drainage commissioner of the county, was appointed by the court as his successor in said work, and was ordered to proceed with the same to completion, and was also authorized by the court to bring this action.

It is alleged in the complaint as breaches of the bond above set forth that the defendant Wells wholly failed to have said drain constructed according to the survey and orders of the court, but caused and suffered said work to be done carelessly, unskillfully, and imperfectly; that the same is wholly useless; that is to say, he let the contract for cutting said drain, laying the tile, and filling the ditch to incompetent, unskillful, and irresponsible persons, then and still wholly insolvent, knowing them to be such, and that he wholly failed to take any security or bond whatever for the faithful performance of said work, and carelessly suffered said contractors to cut said drain, and lay said tiling, and cover the same deeply with earth, without first having the said drain cut according to said survey, and without giving the ditch a uniform fall, so as to allow the water to flow freely through said tiling; that the same was cut out to irregular depths, varying from the proper level in different places along the route of said drain, where the greatest depth was required, more than one foot, and lacking one foot of the depth of six feet at the head of said ditch, as required by said survey and order; that the water does not flow freely through said tiling, and will not flow at all, only as it is forced through by head-water; that said drain does not carry off the water to a sufficient depth below the surface of the ground in the swamps it was intended to drain to fit the same for cultivation or to furnish an outlet for side drains; that said ditch is wholly useless for the purposes for which it was intended, but had it been constructed according to said survey it would have furnished sufficient outlet for the drainage of said swamp, reclaimed the same, and rendered the soil thereof productive and of great value; that said Wells wrongfully and negligently paid over to said contractors large sums of money, to-wit, $1,000, and the entire price for the work done by them, negligently having failed to exercise any supervision over the same, or to make any inspection thereof, and negligently failed to remedy said defects, or to require said contractors so to do, when, by the exercise of reasonable care and by proper inspection as the work progressed, and at the time said contractors professed to have completed the same, he might have discovered and remedied said defects; that, had he exercised proper care, and made said inspection before said drain was filled with earth, the said defects could have been discovered, and at a nominal cost remedied, but that in its present condition said drain will have to be reopened, the tiling removed, and the bottom of said channel cut to its proper level, according to said survey and order, to make the same effectual to drain the said land, which will cost $1,000; that said Wells paid out all the remainder of said assesments, except the sum of $100, which he converted to his own use, and then absconded, leaving no funds to complete said work.

The defendant Wells made default in the court below, and the other defendants appeared and filed a demurrer to the...