Troyar v. Dyar

• Decision Date: 20 June 1885
• Citation: 1 N.E. 728,102 Ind. 396
• Parties: Troyar and others v. Dyar.
• Court: Indiana Supreme Court

102 Ind. 396

1 N.E. 728

Troyar and others

v.Dyar.

Supreme Court of Indiana.

Filed June 20, 1885.

Appeal from Howard circuit court.

Blacklidge & Blacklidge, for appellants.

M. Garrigus, for appellee.

Elliott, J.

The appellants allege in their complaint that they are the owners of 40 acres of land; that they acquired title by deed from David and Fuby Foster, and that Fosters derived title by deed from Christian F. Weaver, executed on the eighth day of August, 1882; that the deed from the Fosters to Weaver was duly recorded on the second day of September, 1882, and the one from Weaver to the appellants on the twelfth day of September, 1882. It is further alleged that a petition asking for the establishment of a ditch was filed on the thirteenth day of September, 1882, and in the petition it was alleged that the proposed ditch would affect the land of Christian F. Weaver; that such proceedings were afterwards had that an order for the construction of the ditch was entered, and that the land assessed against Weaver, but owned by the plaintiffs, would be benefited in the sum of $70. It is also averred that the plaintiffs did not have notice of the petition; that they were not named in the petition or notice, or in any of the proceedings; that the only notice ever given of the filing of the petition was by posting printed notices on the eleventh day of September, 1882. The prayer of the complaint is that the assessment may be set aside.

To this complaint appellant answered that he was the duly-elected commissioner of drainage; that on the thirteenth day of September, 1882, John Davis filed a petition praying for the establishment of a ditch. The answer sets forth the allegations of the petition, from which it appears that it was in all respects a valid and sufficient petition; and the answer also sets forth the proceedings taken in the matter, from which it appears that the notices in Howard county were posted on the ninth and eleventh days of September, and that an order for the establishment of the ditch and the assessment of land was made, which is regular on its face and is in due form. After setting forth the proceedings for the establishment of the ditch, the answer alleges the execution and recording of the deeds as alleged in the complaint, but that at the time of filing the petition and posting the notices, the land appeared on the last tax duplicate to be owned by Christian F. Weaver; that immediately after the recording of the notice of the lien the appellee awarded the contract for the construction of the ditch, and the contractor at once entered upon the work; that the plaintiffs then resided and lived on the lands, and knew that the contract for the construction of the ditch was being awarded; that, to copy the language of the pleader, “they knew the said ditch was being so established, and especially that it was being constructed month after month, during the spring, summer, fall, and winter of 1883, and yet they stood by, being cognizant of their rights, and took no steps to arrest the construction, which they might and could have done before such expenses were incurred or such contract awarded.” The answer shows that the land was properly described,...