Steenburg v. Kyle

• Decision Date: 21 January 1919
• Docket Number: 23,441
• Citation: 121 N.E. 537,188 Ind. 26
• Parties: Steenburg et al. v. Kyle et al
• Court: Indiana Supreme Court

121 N.E. 537

188 Ind. 26

Steenburg et al. v. Kyle et al

No. 23,441

Supreme Court of Indiana

January 21, 1919

From Starke Circuit Court; William C. Pentecost, Judge.

Petition by Alfred C. Steenburg and others against William G. Kyle and others to repair a drain. From a judgment of dismissal, the petitioners appeal.

Affirmed.

Darrow & Rowley and O. W. Nichols, for appellants.

M. R Sutherland and R. N. Smith for appellees.

OPINION

Myers, J.--

Appellants, by petition filed in the Starke Circuit Court, on September 25, 1917, commenced this proceeding for the repair deepening, enlarging and extending of what is known as the "Place ditch," and certain arms thereof, as authorized by § 19, Acts 1907 p. 508, § 6174 Burns 1914. It appears from the petition that in 1901, by order of the Starke Circuit Court, the Place ditch, including what was known as the "Blain" and "Robinson" arms were ordered and constructed, and affected lands in Starke and LaPorte counties.

The petition is questioned only by a remonstrance challenging the jurisdiction of the Starke Circuit Court over the subject-matter of the proceeding. In substance, it shows that in a certain proceeding had in the LaPorte Circuit Court, begun March 26, 1909, pursuant to §§ 2, 3, and 4, Acts 1907 p. 508, §§ 6141, 6142, 6143 Burns 1914, that court, upon petition of William G. Kyle and others, laid out and established a new ditch along the line of the Place ditch known as the "Kyle ditch," as also the "Fell" arm, formerly the "Blain" arm, and the "Chapman" arm along the line of the Robinson arm of the Place ditch; that such proceedings were had by the LaPorte Circuit Court whereby the last-named ditch and arms thereof were established and completed and assessments made for the payment of the work. Appellants' demurrer to this remonstrance was overruled, whereupon they answered by a general denial, and by affirmative matters not necessary to be here stated.

The issue thus formed was submitted to the court, trial had, facts specially found, and conclusions of law stated thereon as follows: (1) That the Starke Circuit Court "has no jurisdiction of the petition wherein it seeks to clean out and reopen the original Place ditch from station 0 to station 425 of the main line, the Robinson arm and the Blain arm." (2) "That the petition describing and praying for a cleanout of the original Place ditch from station 0 to station 425, the Robinson arm and Blain arm, should be dismissed." The judgment was in accordance with the conclusions of law. Exceptions to the conclusions of law on the special findings of fact, and the assignment of error thereon, bring to our attention the only question involved in this appeal.

The findings, in substance, show that in a proceeding begun on April 15, 1901, what was known as the Place ditch and certain arms thereof known as the Blain and Robinson arms in Starke and LaPorte counties were established and constructed. On March 26, 1909, William G. Kyle and others commenced a proceeding in the LaPorte Circuit Court for the establishment and construction of a ditch which, as laid out and established, followed the line of the Place ditch from station 0 to station 425, and over the Blain and Robinson arms, thereafter known as the Kyle ditch, Fell and Chapman arms. Under the proceedings thus had the Kyle ditch and arms thereof were constructed according to the plans and specifications therefor, and all the lands theretofore assessed for the construction of the Place ditch were assessed to pay for the construction of the new ditch.

Appellants contend that the proceedings had in the LaPorte Circuit Court in no way affected the jurisdiction of the Starke Circuit Court over the original Place ditch. It seems to us that a fair interpretation of the facts lead to the conclusion that the Place ditch was superseded by the Kyle ditch. As we have seen, both ditches affected lands in Starke and LaPorte counties. The Place ditch was completed long before the Kyle ditch proceedings were started. It is conceded that the proceedings in both courts covered practically the same course of drainage. It cannot be said that a new drain, if in fact it be a new one, cannot be established along the line of the old. This court has so held. ...