Taylor v. Strayer

Decision Date20 June 1906
Docket NumberNo. 20,694.,20,694.
Citation78 N.E. 236,167 Ind. 23
PartiesTAYLOR v. STRAYER et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Noble County; E. C. Vaughn, Special Judge.

Proceedings by John N. Strayer and others to establish a public drain in which Henry L. Taylor filed a remonstrance. From an order sustaining a demurrer to remonstrant's amended answer, he appeals. Reversed.

Thomas R. Marshall, John W. Hanan, and Wm. L. Taylor, for appellant. T. A. Redmond, and L. H. Wrigley, for appellees.

MONTGOMERY, J.

Appellees commenced this proceeding by filing a petition with the board of commissioners of Noble county, for the establishment of a ditch beginning in said county and terminating in La Grange county, by virtue of the provisions of sections 5655 to 5671, inclusive, Burns' Ann. St. 1901. Appellant, at the proper time, filed a remonstrance against the proposed ditch, and such proceedings were thereupon had as resulted in a judgment of the circuit court upon appeal, dismissing the proceeding. This judgment was reversed upon appeal to this court. Strayer et al. v. Taylor et al., 163 Ind. 230, 69 N. E. 145. The cause was remanded to the lower court, and before further steps were taken therein the General Assembly passed a new drainage law and repealed all prior drainage statutes. Acts 1905, p. 456, c. 157. Section 14 of the new act reads as follows: “All laws and parts of laws heretofore enacted in relation to drainage are hereby repealed, but such repeal shall not affect any pending proceedings in which a ditch has been ordered established or in which there is no attempt to and which will not lower or affect any lake or body of water that has to exceed ten acres of surface at high water mark, and such proceedings and all remedies in relation thereto shall be concluded and be effective in all respects as if this act had not been passed. Nor shall this act be construed to repeal any act passed at this session of the general assembly in relation to the construction of drains and sewers in counties having a city therein of not less than 59,000 nor more than 100,000 population according to the last preceding United States census, nor shall this act be deemed to repeal or affect any act passed at this session of the General Assembly to preserve the fresh water lakes of the State of Indiana at their established level and to protect them from danger of being injuriously affected or destroyed: Provided, further, That such repeal shall not affect or be construed to repeal any other act upon the subject of drainage passed by the present general assembly.”

The same Legislature passed a penal statute for the preservation of fresh water lakes, section 1 of which reads as follows: “Be it enacted by the General Assembly of the state of Indiana, That it shall be unlawful for any person or persons, firm or corporation, to locate, dig, make, dredge, or in any manner construct, or for any court, or board of commissioners, or body of viewers or drainage commissioners, to order or recommend the location, establishment or construction of any ditch or drain cutting into or through, or upon the line of any fresh water lake or lakes in the state of Indiana, or to locate, dig, make, dredge, or in any way construct any ditch or drain, having a bottom depth lower than the present water line of such lake, within forty rods of any point on the line of such lake where the line or any portion thereof is known or ascertainable; or in case such line or any part thereof is lost and cannot be ascertained, within forty rods from high water mark on the margin of such lake, such high water mark to be the highest point on such margin to which such water has risen within the ten years last past.”

Other sections of the act made it unlawful so to interfere with the shores or banks of any such lakes as to lower the waters thereof, or to interfere with any levee or dam constructed for the purpose of maintaining the present water level of any such lake. Acts 1905, p. 447, c. 152. After the taking effect of these statutes appellant filed a special verified answer or plea to the jurisdiction of the court, in which he alleged that the proposed ditch will pass through the following fresh water lakes in Noble county, to wit: Lake Shockopee, Hardy Lake, Tamarack Lake, and Mud Lake, and also Nauvoo Lake in La Grange county; and that it will lower the present level of said lakes eight feet in depth; that appellant is the owner of a dam by which the present water level of said lakes is maintained, and that the construction of the proposed drain will destroy said dam and thereby lower the water level of said lakes eight feet; and that by the construction of the proposed drainage the banks and shores of said lakes will be so cut into and interfered with as to lower the water level of said lakes; and that the waters of said lakes cover areas as follows: Shockopee, 120 acres; Hardy, 70 acres; Tamarack, 130 acres; Mud, 5 acres; and Nauvoo, 80 acres; that under the drainage act of 1905 the rights of appellees were not preserved, but the proceedings contemplated under their petition were expressly forbidden and made unlawful, and the court is without authority further to entertain jurisdiction of the proceeding. Wherefore the court was asked to hear evidence as to the facts alleged, and to make such order as under existing laws the proof might warrant.

Appellees' demurrer to this answer for want of facts was sustained, to which decision appellant excepted. Error assigned upon this ruling presents the controlling question for decision. No right to construct an artificial drain over the lands of others exists at common law. Drainage statutes are given or withheld in the discretion of the Legislature, and when enacted may be modified or repealed at the pleasure of that body. It follows that one Legislature cannot determine the policy of its successor and forestall action which may be deemed expedient to protect the public health or to promote the public welfare. It is altogether plain that in the opinion of the General Assembly of 1905, the public interests require the preservation of fresh water lakes having to exceed 10 acres of surface. The drainage act of 1905 expressly repealed all existing laws upon that subject. It is a well-settled principle that when a right of...

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17 cases
  • State ex rel. Milligan v. Ritter's Estate, 16899.
    • United States
    • Court of Appeals of Indiana
    • February 23, 1943
    ...There are decisions in this state which seem to support this contention, the most notable of which is the case of Taylor v. Strayer, 1906, 167 Ind. 23, 78 N.E. 236, 238, 119 Am.St.Rep. 469, in which the court said “It is manifest that section 248, supra [Burns' 1933, Sec. 1-307, Baldwin's 1......
  • Milligan, State ex rel. v. Ritter's Estate
    • United States
    • Court of Appeals of Indiana
    • February 23, 1943
    ...in its later decision the Supreme Court has given a broader meaning to the word "liability" than that to which it was restricted in Taylor v. Strayer, supra. This seems in with earlier decisions in which it frequently has been held that this statute saves an accrued right and the remedy to ......
  • Moorehouse v. Kukalman
    • United States
    • Supreme Court of Indiana
    • November 28, 1911
    ...(1905) 165 Ind. 542, 76 N. E. 165:Bruce v. Cook (1894) 136 Ind 214, 35 N. E. 992; Kunkalman v. Gibson, supra; Taylor v. Strayer, 167 Ind. 23, 78 N. E. 236, 119 Am. St. Rep. 469. [4] But it is claimed by appellees, this court decided, in Taylor v. Strayer, supra, and Kunkalman v. Gibson, sup......
  • Moorhouse v. Kunkalman
    • United States
    • Supreme Court of Indiana
    • November 28, 1911
    ...supra; Taylor v. Strayer (1906), 167 Ind. 23, 78 N.E. 236, 119 Am. St. 469. But, it is claimed by appellees, this court decided in Taylor v. Strayer, supra, Kunkalman v. Gibson, supra, that costs are given or withheld by statute, and the right to recover costs not already reduced to judgmen......
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