Stockton v. Yeoman

• Citation: 100 N.E. 2,179 Ind. 61
• Decision Date: 13 December 1912
• Docket Number: 22,214
• Parties: Stockton et al. v. Yeoman et al
• Court: Supreme Court of Indiana

100 N.E. 2

179 Ind. 61

Stockton et al. v. Yeoman et al

No. 22,214

Supreme Court of Indiana

December 13, 1912

Motion to Reinstate Overruled January 7, 1913.

From Jasper Circuit Court; E. B. Sellers, Special Judge.

Proceedings instituted before the Board of Commissioners of Jasper County by Reuben C. Yeoman and others for the improvement of a certain highway, against which Almira M. Stockton and others remonstrated. From a judgment of the circuit court against the remonstrants, this appeal is prosecuted.

Appeal dismissed.

W. H Parkinson, for appellants.

Frank Foltz, Philip R. Blue and George A. Williams, for appellees.

OPINION

Cox, J.

This was a proceeding instituted before the board of commissioners of Jasper County for the improvement of a certain public highway in that county with gravel or stone for a length of four and one-half miles, under the provisions of §§ 46-56 inclusive of the general highway act of 1905 (Acts 1905 p. 521, §§ 7694-7704 Burns 1908). Appellants and others appeared before the board of commissioners in the proceeding and filed remonstrances against the improvement. After a hearing there was a finding against them and, from the final order of the board confirming the assessments and ordering the improvement made in accordance with the report of the viewers and engineer, they appealed to the circuit court. In that court they were again unsuccessful and from a judgment there establishing the improvement and confirming the assessments, and remanding the proceeding back to the board for the completion of the work, appellants attempt to sustain the appeal to this court.

Appellees contend that the appeal is not only not authorized, but that there is found in the provisions for the improvement of a highway by assessment against the lands benefited, above referred to, under which this proceeding was instituted, a positive withholding of any right of appeal from the judgment of the circuit court therein. This contention is presented by a timely motion to dismiss the appeal.

Section 46, supra (§ 7694 Burns 1908), provides for the presentation to the board of commissioners of a petition for the improvement of an established highway by a majority of the resident landowners whose lands lie within one mile of the proposed improvement, and who will be benefited thereby and constitute a majority of the acres owned by such residents. It provides for notice of the application for the improvement, and thereafter for the appointment of viewers and a competent engineer to examine and determine whether the proposed improvement will be of public utility or convenience, and whether the costs and expenses thereof and damages caused thereby will be less than the benefits to lands affected. These viewers are also required to apportion the estimated costs, expenses and damages upon all the lands that will be benefited according to the benefits to be derived from the improvement. Section 47 supra (§ 7695 Burns 1908), provides for a report by the viewers and surveyor on these matters, and notice of a time for a hearing thereon by the board. Section 50, supra (§ 7698 Burns 1908), provides that on or before the day set for the hearing of the report, the owners of any land affected by the proposed work may remonstrate against the report for any or all of the following causes:

"First. That the report of the viewers is not according to law, stating specifically the illegality claimed; Second. That the lands of the party filing the remonstrance are not benefited, or are assessed too much as compared with other lands assessed as benefited, specifying such lands; Third. That the lands of the party filing the remonstrance are damaged, and that the damages assessed are inadequate; Fourth. That it is not practicable to accomplish the proposed work without an expense exceeding the aggregate benefits; Fifth. That the proposed work will not be of public utility." It is also provided in this section that "the only questions that shall be raised shall be those raised by the remonstrance" and these, it is provided, shall be tried by the board.

Section 56, supra (§ 7704 Burns 1908), relates to appeals from the board to the circuit court and is as follows: "Any person who appeared and filed a remonstrance before the board of commissioners as provided for in section 50 of this act, shall be allowed an appeal to the circuit court, in like manner as other appeals are now allowed; and on such appeal the only question that shall be tried in the circuit court shall be the question raised before the board of commissioners by the first, second or third cause of remonstrance, which questions shall be tried by the court without a jury. On such trial the report of the viewers shall be prima facie evidence of the facts therein contained. If more than one party appeal all such appeals shall be consolidated and tried together and the rights of each appellant separately determined. If the court find for any appellant upon the first cause of remonstrance the report shall be referred back to the viewers for correction, or for a new report; and if the report as so amended is found to be correct it shall be approved by the court. If the court find for any appellant upon the second or third cause for remonstrance, it may modify and equalize the assessments as justice may require, by diminishing or increasing any assessments or benefits, or by giving or withholding, increasing or diminishing, damages....