Stockton v. Yeoman, No. 22,214.

• Docket Nº: No. 22,214.
• Citation: 100 N.E. 2, 179 Ind. 61
• Case Date: December 13, 1912
• Court: Supreme Court of Indiana

179 Ind. 61
100 N.E. 2

STOCKTON et al.
v.
YEOMAN et al.

No. 22,214.¹

Supreme Court of Indiana.

Dec. 13, 1912.

Appeal from Circuit Court, Jasper County; E. B. Sellers, Special Judge.

Proceeding instituted by Reuben C. Yeoman and others for the improvement of a public highway, in which Almira M. Stockton and others filed remonstrances against the improvement. From a judgment of the Circuit Court confirming the assessments by the Board of Commissioners, the remonstrators appeal. Appeal dismissed.

[100 N.E. 3]

Wm. H. Parkinson, of Indianapolis, for appellants. Frank Foltz and Philip R. Blue, both of Rensselaer, for appellees.

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 4 1/2 miles under the provisions of sections 46 to 56, inclusive, of the general highway act of 1905 (Acts 1905, pp. 537-548; Burns' Statutes 1908, §§ 7694-7705). 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.

[1][2] Section 7694 (46) 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 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 7695 (47) provides for a report of the viewers and surveyor on these matters and notice of a time for a hearing thereon by the board. Section 7698 (50) 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...