Straus Bros. Co. v. Fisher

• Decision Date: 11 October 1928
• Docket Number: No. 24481.,24481.
• Citation: 163 N.E. 225,200 Ind. 307
• Parties: STRAUS BROS. CO. et al. v. FISHER et al.
• Court: Indiana Supreme Court

200 Ind. 307

163 N.E. 225

STRAUS BROS. CO. et al.

v.FISHER et al.

No. 24481.

Supreme Court of Indiana.

Oct. 11, 1928.

Appeal from Superior Court, Allen County.

Petition by the Straus Bros. Company and another before the board of commissioners to remedy a public drain, opposed by Francis F. Fisher and others. The proceeding was dismissed by the board of commissioners and by the circuit court on appeal, and petitioners appeal. Affirmed.

Superseding former opinion, 154 N. E. 12.

Arthur W. Parry, of Ft. Wayne, for appellants.

Aiken, Douglass & Aiken, of Ft. Wayne, for appellees.

PER CURIAM.

The appellant company has a farm at the source or commencing point of a public drain known as the Fachs ditch, and its coappellant has the one next below across which the drain runs for a quarter of a mile, while the farms owned by appellees are crossed by or otherwise drain into it along its course for a mile or more after it has passed appellants' farms. Appellants filed before the board of commissioners a petition that contained all the usual formal allegations of a drainage petition, and averred that petitioners were respectively the owners in fee simple of certain described lands affected by and originally assessed for the construction of the drain and its branches, descriptions of which were set out; that said drain was established in 1901 by certain proceedings before the county board of commissioners; that the drain and its branches “as originally constructed are not sufficient to perform the drainage for which they were designed and intended; that, because of the smallness of the tile originally placed in said drains and of one or more places in said drains where the same do not flow in a straight or natural direction, the same are not sufficient to carry off the volume of water which drains into them from the lands intended to be drained thereby; that, because of such facts, large pools and quantities of water are permitted to gather on lands belonging to these petitioners and others, which lands were intended to be drained by said drains, and which lands were assessed for the construction thereof, *** and are not drained off by said drains for a period of a week after the same have gathered, thus causing unhealthy conditions and damaging and destroying the crops on said lands; *** that said drains can be made sufficient to perform the drainage for which they were designed and intended, and can be made sufficient and adequate *** by increasing the size of the tile in said drains *** and by changing the course of the drain in one or more places; *** that the altering and repairing (as proposed) would be of great public utility; *** that the public health will be improved; and that the highways *** will be benefited. ***”

Ten of the twelve owners of lands that drain into this drain and its branches having filed a statement, in writing, duly signed by them, that they were residents of Allen county and “constituted more than two-thirds of the owners of lands affected by the proposed drainage,” and owned lands abutting on more than 50 per cent. of the total length of the drain and branches, and that they “respectfully remonstrated against the construction of the proposed ditch, and the repairing and altering of the Francis Fachs ditch and branches,” and asking that the petition be dismissed, the board of commissioners entered an order dismissing the proceeding. An appeal to the circuit court was duly taken, and on proper request that court made a special finding of facts, in which it stated conclusions of law that section 6196, Burns 1926 (chapter 68, p. 426, Acts 1919, amending chapter 65, p. 152, Acts 1913, which amended section 19, c. 252, pp. 508, 535, Acts 1907), was repealed by implication by chapter 107, p. 417, Acts 1915, before being amended, that this was not a proceeding under or authorized by that section, and that the remonstrance was sufficient, and the cause should be dismissed, to each of which conclusions of law the petitioners excepted. Sandwiched in between the last conclusion of law, to the effect that the cause should be dismissed, and the notation of exceptions to the conclusions, the order book entry contained the statement, “and the same is hereby dismissed.” But no formal judgment of dismissal or for costs was entered, nor anything more than the statement which preceded by several lines the signature of the judge to the special finding and conclusions of law. A motion for a new trial, for the alleged reasons that the decision is not sustained by sufficient evidence and is contrary to law, was overruled, and appellants excepted. Their assignment of errors challenges each conclusion of law, the overruling of their motion for a new trial, and the refusal to grant a change of venue from the new judge who succeeded to his office by election after the cause was tried and after the motion for a new trial had been filed.

[1] Appellees have suggested in their brief that no final judgment was rendered by the trial court. But this is a cause that originated before a board of commissioners, where but little formality is required, and a conclusion of law “that said cause should be dismissed,” being followed by a recital in the order book entry that “the same is hereby dismissed,” and subsequent entries stating that upon overruling the motion for a new trial the court granted time to file bills of exceptions, and that an appeal to the Supreme Court was prayed and was granted upon filing, within a time fixed, a bond which was duly filed within that time, we must accept the recital as constituting an entry of judgment dismissing the action, even though the entry be informal and incomplete. The point that there was no final judgment is not well taken.

Section 6196, supra, before its amendment in 1919, had consisted of the act of 1913, p. 152, supra, which purported to amend section 19 of the act of 1907, as indicated above. It was the amended act of 1913 (page 152) which the trial court concluded “was repealed by implication by chapter 107, p. 417, of the Acts of 1915,” although the latter act, while expressly providing by section 35 (page 452) “that §§ 10, 11, 12, 13, 14, 15, 16, and 20 of an act entitled ‘An act concerning drainage and repealing laws in conflict,’ approved March 11, 1907,” as well as three other acts, should “be and the same are hereby repealed,” did not mention or refer to section 19, nor the act of 1913 by which it had been amended, nor indicate a purpose to repeal the section as so amended, unless by reason of what it enacted being inconsistent with the provisions of the amended section 19, or because its provisions covered the entire subject-matter of that section.

Section 19, as so amended in 1913, provided that the owner of any tract of land affected by and assessed for the construction or tiling of a public drain under any law might file with the board of commissioners or in the circuit or superior court his petition alleging “that such [public] drain, or any part thereof, being out of repair, is not sufficient to properly perform the drainage for which it was designed and intended, and that it can be made sufficient *** by tiling and covering, *** or by increasing the size or number of the tile and changing the course, or extending the length thereof, or by removing the tile and converting the drain into an open ditch, or by making any other change therein which would be of public utility,” conforming in general to the form of petition and rules of practice prescribed in the case of original petitions for drainage, and that the change, extension, or repairs asked for, if ordered, should be made and paid for by assessments, in conformity with the provisions of the general law for constructing drains upon original petitions, but that in a proceeding to make a drain “perform the drainage for which it was designed and intended,” by increasing the size or number of the tile and changing the course or extending the length of the drain, if “the court shall find that such drain as originally constructed and as existing is not sufficient to properly drain the lands intended,” but that the proposed improvement probably will do so, “and will, if made, be of public utility,” then the right of two-thirds in number of the resident owners of lands affected to defeat the proceeding and cause the petition to be dismissed by merely filing a remonstrance stating that they are opposed to the construction of the drain is denied. Section 6174, Burns 1914 (chapter 65, p. 152, Acts 1913). Section 10 of the original act of 1907, in which section 19 was found, provided:

“That all ditches or drains that may have been, or may hereafter be, constructed under and by virtue of any law of this state, shall, except as hereinafter *** provided, *** be under the charge and supervision of the trustee of the township *** whose duty it shall be to see that the same are cleaned out and kept open, *** free from obstruction, so as to answer their purpose.”

Succeeding sections, down to and including section 16, provided the manner in which the township trustee, with the aid of the county surveyor, should cause ditches and drains to be cleaned and repaired, and how payment of the expense should be enforced, and contained provisions for an appeal to the circuit court. And section 20 provided that “the repair of all drains or ditches other than dredge ditches, shall be in the hands of the township trustees in...