State ex rel. Fadley v. Board of Commissioners of Henry County

• Decision Date: 04 June 1901
• Docket Number: 19,541
• Citation: 60 N.E. 939,157 Ind. 96
• Parties: The State, ex rel. Fadley, Drainage Commissioner, v. Board of Commissioners of Henry County, et al
• Court: Indiana Supreme Court

60 N.E. 939

157 Ind. 96

The State, ex rel. Fadley, Drainage Commissioner, v. Board of Commissioners of Henry County, et al

No. 19,541

Supreme Court of Indiana

June 4, 1901

From Henry Circuit Court; W. O. Barnard, Judge.

Mandamus by the State on the relation of the drainage commissioner of Henry county, against the board of commissioners of Henry county. From a judgment for defendants, relator appeals.

Affirmed.

Adolph Rogers, for appellant.

M. E Forkner and G. D. Forkner, for appellees.

OPINION

Jordan, J.

Petition by the State on the relation of Henry Fadley, commissioner of drainage of Henry county, Indiana, for a writ of mandamus to compel the board of commissioners and certain township trustees, appellees herein, to remove iron bridges which had been constructed over Blue river, a water course in said county. The defendants recovered judgment on their separate demurrers to the petition. From this judgment the relator appeals, and his sole contention is that under the facts alleged in the petition he is entitled to be awarded a writ of mandamus against appellees for the purpose above mentioned.

The following facts, among others, are averred in the petition In September, 1899, certain resident freeholders of Henry county, Indiana, petitioned the circuit court of that county to establish a public ditch under and in pursuance of §§ 5623, 5624, et seq. Burns 1894. Such proceedings were had in said cause that the matter involved was, as provided by the statute, referred to the commissioner of drainage, the relator herein, who, together with the county surveyor and a certain other disinterested and reputable freeholder of that county, appointed by the court as a third commissioner, made a personal inspection of the lands described in the drainage petition, and also of other lands likely to be affected by the construction of the proposed drain, and thereupon said commissioners made a favorable report to the court and therein assessed benefits to each separate tract of land and also against the roads of railroad companies and against certain free gravel roads and public highways. Said report, together with the assessments of benefits of the lands and easements as therein provided was approved and confirmed by the court, and the ditch was ordered to be established and constructed as located and provided in the report of the commissioners. The course or route of said improvement as located extends for a distance of more than fifteen miles along and in the channel of Blue river, which is alleged to be an ancient water course and non-navigable stream flowing through Henry county. It further appears that some three separate gravel roads which are free public highways, together with some fourteen other public roads, were each separately assessed as benefited by the construction of the proposed drain. As a part of the aforesaid highways and roads certain iron bridges had been constructed by the board of commissioners of that county in conjunction with certain township trustees. On the 20th day of July, 1900, the relator herein, as such drainage commissioner in said proceeding, entered into a written contract with one Boyer for the construction of said drain as established by the court's order. Under this contract, it is disclosed that the relator, as such commissioner, expressly relieved the contractor from any and all expenses and duty of removing the bridges in question. It is further alleged that the drainage of said river can only be accomplished by means of a dredging machine placed on a boat to be floated on the river, and that it will be impossible for any dredging machine suitable and necessary to perform the work of dredging in said stream to pass under or around any of said bridges. It is averred that the contractor is ready with his boat and dredging machine to begin work in said river, and, in order for him to construct the ditch as established by the court, it is necessary that the aforesaid bridges spanning said river, and connected as parts of said public highways, be removed, in order to...