State v. Robert, No. 28342.

• Docket Nº: No. 28342.
• Citation: 76 N.E.2d 832, 226 Ind. 106
• Case Date: January 23, 1948
• Court: Supreme Court of Indiana

226 Ind. 106
76 N.E.2d 832

STATE
v.
ROBERT et al.

No. 28342.

Supreme Court of Indiana.

Jan. 23, 1948.

Original action by the State of Indiana against Victor K. Roberts, as Special Judge of the Circuit Court of Newton County, State of Indiana, the Circuit Court of Newton County, State of Indiana, and Edgar D. Nesbit, as Surveyor, in the matter of the petition for repair of Whaley-Hambridge Ditch, No. 39, in the Circuit Court of Newton County, State of Indiana, for a writ of prohibition to stop proceedings against the State Highway Commission in a drainage project, to prohibit interference with a culvert crossing a state highway and to prohibit carrying out of that part of an order and decree requiring the construction struction of a new bridge by and at the cost of the State Highway Commission.

Writ denied except as to that portion requiring the State Highway Commission to build a bridge.

EMMERT, C.J., dissenting.

[76 N.E.2d 834]

Cleon H. Foust, Atty. Gen., and Connor D. Ross, Deputy Atty. Gen., for plaintiff.

George F. Sammons, of Kentland, and Cope J. Hanley, of Rensselaer, for respondents.

YOUNG, Judge.

This is an original action in this court by the State of Indiana against the respondent Roberts, as Special Judge, and the respondent Nesbit, as surveyor, for a writ of prohibition to stop further proceedings as against the State Highway Commission of Indiana in the drainage project involved and to prohibit them from interfering with or removing the existing structure (a culvert) at the point where the proposed drainage project crosses State Highway No. 41, and to prohibit them from carrying out that part of the order and decree in said proceeding which requires the construction of a new bridge at said point of crossing by and at the cost of the State Highway Commission of Indiana.

At this point we think it proper to say that the surveyor was not a proper party to this action. This court's jurisdiction to issue writs of prohibition is strictly statutory. We issue such writs only to inferior courts for the purpose of confining them to their respective lawful jurisdictions. § 3-2201, Burns' 1946 Replacement. There is nothing in the statute which permits us to issue a writ to an officer of the court, although the officers of the court who may be expected to act upon the authority of the prohibited action and who have notice of the writ are bound by it. State ex rel. Spencer v. Criminal Court, Marion Co., 1938, 214 Ind. 551, 558, 15 N.E.2d 1020,16 N.E.2d 888.

From plaintiff's petition and the returns of respondents, it appears that on June 24, 1944, there was filed in the Circuit Court of Newton County a petition seeking the repair and alteration of an old drain in Washington Township, Newton County.

Our drainage law stipulates the contents of petitions for the initiation of drainage projects. § 27-104, Burns' 1933. It provides that lands which will be affected by the proposed drainage shall be described and that the names of owners thereof, if known, shall be stated.

Under the statute no process is required when the petition is filed, but the petitioners are required to fix a day for docketing the petition and to give the owner or occupant of each tract of land described in the petition notice of the filing of such petition and the day set for docketing same. Such notice may be served by the petitioners or any person acting for them by delivering a copy to the owners or occupants of land affected, and notice by posting and by mail to non-residents is also provided. § 27-106, Burns' 1933.

By § 27-112, Burns' 1933, notice of hearing on the surveyor's report is provided for. This again is not by ordinary legal process but by postal card, mailed to the owners whose names appear in the survoyor's report of assessments, benefits and damages.

In this connection it may also be worth while to consider that under the plan and system set up for the establishment of drains such proceedings are not adversary. They are ex parte in form. Essentially they are actions in rem against the affected land and jurisdiction over the persons of the owners of such land is not necessary, as where personal judgments are sought. Substituted service is sufficient to give jurisdiction.

In the matter presented to us, the State Highway Commission is named in the petition for the new drain as the owner of Highways 41 and 16. The State Highway Commission was given the notices required by statute and a representative of

[76 N.E.2d 835]

the State Highway Commission attended the surveyor's hearing. There is no contention by the State that there was any failure in any particular to follow the statutory procedure for the establishment of drains in the matter here involved.

Thereafter such proceedings were had that the surveyor in performance of his duties under the statute made his report to the court, and in said report fixed the damages and benefits caused by the said project, and made it appear that where the proposed improvement was designed to cross Highway 41 the culvert then existing would be destroyed and a new bridge of a size sufficient to give a waterway corsssection a size sufficient to give a waterway cross-section He also made it appear that there would be no repair, underpinning or rebuilding of abutments of the culvert then existing under the old drain inasmuch as the proposed improvement was to be an open ditch and the old drain was of tile construction. It was further made to appear that the route proposed does not call for a cut-off for the purpose of shortening and straightening the old ditch.

There was later a hearing on the surveyor's report and it was ordered and decreed by the court that the report of the surveyor be confirmed and the assessments and benefits reported be approved and that the ditch and drain be established over the route as laid out and described in the surveyor's report, which route it appeared extended over and across Highway 41. And it was further ordered and adjudged by the court that the State Highway Commission construct and pay for the bridge necessary at the point where said ditch crosses said highway. This decree was entered on June 28, 1947, and thereafter, on July 25, 1947, this action was commenced in this court for a writ of prohibition, as first above indicated.

In its petition to us the State alleges that it was not made a party to any of these proceedings and that no notices of any character were ever served upon or furnished to the Attorney General of Indiana.

The primary position of the plaintiff is that the court has no jurisdiction over said Commission or the subject matter of said proceeding as against said Commission and that the decree as to it is void.

If the State Highway Commission were the ordinary owner of affected real estate there would be no question of the jurisdiction of the court. It seems to us that we must reach the same answer in considering the position of the State Highway Commission. It was given by statute complete control over the State highways. It designates the work which is to be done and prepares plans, specifications and estimates for same, § 36-108, Burns' 1933. It lets all contracts, § 36-112, Burns' 1933, and executes same in the name of the State, § 36-114, Burns' 1933. It has access to and power to draw upon and expend all money in the State Highway fund, § 36-109, Burns' 1933. It is authorized to adopt its own seal and is required to use its own seal in the execution of contracts and other documents and papers as the same may be required. § 36-101, Burns' 1933.

While, strictly speaking, the State of Indiana is the owner of state highways, or the easements and rights in the...