The Parke County Coal Co. v. Campbell, Surveyor of Parke County
| Decision Date | 19 December 1894 |
| Docket Number | 17,088 |
| Citation | 39 N.E. 149,140 Ind. 28 |
| Parties | The Parke County Coal Company v. Campbell, Surveyor of Parke County |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled Feb. 8, 1895.
From the Parke Circuit Court.
The judgment is reversed, with directions to order another assessment based upon the actual benefits to be derived from the proposed repairs.
E. Hunt and A. M. Hadley, for appellant.
H Daniels, for appellee.
The case here presented is an appeal from an assessment made upon appellant's lands for the purpose of reimbursing the county treasury for moneys paid out for the cleaning, repairing and improvement of a certain ditch in Parke and Vigo counties, Indiana, known ao the "Rosedale Ditch."
This action was commenced by appellant filing its bond with the clerk of the Parke Circuit Court within twenty days after the posting of the notices of said assessment by the county surveyor, in the sum of $ 300, being more than the appellant's assessment, stating that appellant was aggrieved thereby, and conditioned upon the faithful prosecution of its appeal, and the payment of all costs decreed or confirmed against it.
Thereupon a summons was issued by said clerk for the county surveyor and served by the sheriff. After said service, the surveyor filed with the clerk a copy of the record of said assessment and the notices thereof, together with a showing as to when and where they were posted; all as required by section 10 of an act approved April 6, 1885, being section 1193 of Elliott's Supp.
A demurrer was interposed by appellee to the appeal bond and complaint, which demurrer was overruled and an exception taken.
The cause was submitted to the court for trial upon an agreed statement of facts contained in the record, and the court found for the appellee, to which the appellant excepted.
Appellant then filed its motion for a new trial, assigning as causes:
First. That the amount assessed by the court is excessive.
Second. The assessment of the amount of recovery is too large.
Third. The decision of the court is not sustained by sufficient evidence.
Fourth. The finding of the court is contrary to law.
This motion was overruled, to which the appellant excepted, and judgment was rendered for the appellee. From the judgment so rendered this appeal is prosecuted.
The only error assigned is the overruling of the appellant's motion for a new trial.
All the causes specified therefor depend practically upon the same question, namely, the construction to be given that part of section 10, supra, which reads as follows: "To raise the necessary money to reimburse the treasury, he (the county surveyor) shall apportion and assess the cost of such repairs upon the lands adjudged by the court benefited by the construction of the ditch, in like proportion as benefits were assessed against said lands for the construction of said ditch."
As shown by the agreed statement of facts, the appellee, Campbell, is the surveyor of Parke county, and, as such, he had the ditch in controversy repaired. It was constructed in the year 1886, under the act of April 6, 1885, supra, by a proceeding in the Parke Circuit Court. Appellant's lands, consisting of forty acres, were originally assessed $ 400 for the construction of the ditch, and the present assessment, for repairs, is $ 145.32. In making the last assessment, appellee determined the amount thereof without viewing the land or having it done, but he was well acquainted with the lands, and knew where the ditch was located. The assessment of $ 145.32 for repairs was based upon the original assessment of $ 400, regardless of whether the lands would be benefited by the last assessment or not.
All of the assessments for repairs were based and apportioned upon the original assessments for the construction thereof, without any regard to the actual benefit to the several tracts of lands from said improvement, or whether they would be benefited at all.
Appellant's land lies at the upper end of said drain, and is mostly high, rolling, and broken ground, and was not in any way, whatever, benefited by the repairs made by the appellee, and the assessment of $ 145.32 was made by appellee to raise the necessary money, along with other assessments, to reimburse the county treasury, out of which funds had been paid for said improvement.
Said repairs for which said assessment was made will not be of any benefit whatever to appellant's lands, but were necessary in order to maintain the ditch at the same depth, width and condition as when originally constructed, and the cost thereof was $ 668.47, but no part of the repairs was along the lands of the appellant.
It will be seen from the foregoing facts disclosed by the record, that the assessment here controverted was made under the section of the statute above referred to, without regard to the benefits to the lands adjoining the ditch from the improvement, but was based solely upon the original assessment. The position of the appellee in making the assessment, and which was sustained by the trial court, was that the words of the statute, "he shall apportion and assess the costs of such repairs upon the lands adjudged by the court benefited by the construction of the ditch in like proportion as benefits were assessed against said lands for the construction of said work," justified and directed such an assessment. That the words, "In like proportion," meant that the apportionment to any tract of land for the repairs and improvement should be based upon the exact portion of the original cost of construction with which that tract was originally assessed, without reference to the benefits accruing to the land from the present improvement.
Appellant's contention is: First, that a proper construction of the statute does not justify or authorize such an assessment, and second, that even if a literal construction should grant such a power, the statute would manifestly conflict with the provision of the Constitution of the United States that "private property shall not be taken for public use without just compensation." R. S. 1881, section 29. Also, that it would contravene section 21, article 1, of the Constitution of this State, R. S. 1881, section 66, which provides that "no man's property shall be taken by law without just compensation; nor, except in case of the State, without such compensation first assessed or tendered."
The statute under which this ditch was constructed provides, as a method of assessment, that the drainage commissioners, in company with a third person, to be appointed by the court who shall be a "reputable freeholder and disinterested, and a man of intelligence and good judgment, and a resident of some township through or into which such ditch or drain is proposed to be constructed, who shall take an oath that he will faithfully and honestly perform his duties, before entering thereon; * * * shall make personal inspection of the lands described in the petition, and of all other lands likely to be affected by the proposed work, and consider * * * Third, whether the costs, damages and expenses of effecting the drainage will be less than the benefits to the owners of the lands likely to be benefited by the proposed drainage * * * and assess the benefits or injury as the case may be to each separate tract of land to be affected thereby and to easements held by railway and other corporations and make...
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