Vandalia R. Co. v. Mizer

• Decision Date: 09 May 1916
• Docket Number: No. 22869.,22869.
• Citation: 112 N.E. 522,184 Ind. 680
• Parties: VANDALIA R. CO. v. MIZER et al.
• Court: Indiana Supreme Court

184 Ind. 680

112 N.E. 522

VANDALIA R. CO.

v.MIZER et al.

No. 22869.

Supreme Court of Indiana.

May 9, 1916.

Appeal from Circuit Court, Clay County; S. A. Enloe, Judge.

Drainage proceedings by Daniel J. Mizer and others against the Vandalia Railroad Company. From a judgment for petitioners, the defendant appeals. Affirmed.

Samuel O. Pickens, Owen Pickens, and John G. Williams, all of Indianapolis, for appellant. G. S. Payne, of Brazil, W. L. Cavins, of Bloomfield, and Hubert Hickam and Willis Hickam, both of Spencer, for appellees.

MORRIS, C. J.

Appellees filed their petition in the Clay circuit court to drain lands in Eel river bottom, by straightening, widening and deepening the channel of the stream, from a designated point in Clay county to the place where it empties into White river, near Worthington. Appellant's right of way crosses Eel river a short distance above its confluence with White river, and at the crossing appellant has a bridge 135 feet along, and an adjoining trestle 60 feet long. The railroad, at this point, runs east and west, and Eel river approaches the bridge from a direction somewhat east of north. After passing under the bridge, the course of the stream is turned abruptly, by a hill, so that it flows thence east a distance of about 1,160 feet along the south side of appellant's railroad, and then turns south to White river. About 1,800 feet east of the bridge there is a hill, and between the points appellant's track is now laid on an embankment 15 feet high, without openings therein. Originally, opposite said south turn of Eel river, there was a long trestle carrying the railroad tracks across a portion of the valley, but in 1885 this was covered with earth, and converted into a solid embankment, which compels the flow of water through the channel at the bridge, and in time of flood acts as a dam, and causes the overflow of lowlands northeast of the bridge.

[1] Appellant was not named in the petition, but the drainage commissioners reported its right of way as affected by the plan of drainage adopted by them. The report provided for the straightening of the stream by cutting a new channel 300 feet wide across the railroad at a point 1,160 feet east of the bridge, thereby requiring appellant to construct a new bridge over the proposed channel. Appellant was not reported as either benefited or damaged by the proposed change. On the filing of the report, notice was served on appellant, and a time fixed for a hearing on the entire report. Section 6142, Burns 1914. Appellant appeared specially, and moved to quash the notice and return of service. The motion was overruled, and the ruling is assigned as error here; but a consideration thereof has been waived by appellant, because of its failure, in its brief, to present any question in relation thereto in its points and authorities. Subsequently appellant filed its verified plea in abatement of the proceeding, alleging that it would be damaged in the sum of $50,000 by the proposed work, and that the act of March 11, 1907 (Acts 1907, p. 508; section 6140, Burns 1914), the sole authority for the proceeding, is void, because in conflict with section 1 of the Fourteenth Amendment of the federal Constitution, for the reason, as alleged, that appellant is deprived by the statute of remonstrating against the proceeding, and of its right to have its damages assessed, and that consequently appellant is thereby deprived of its property without due process of law, and is denied the equal protection of the law, in violation of said constitutional provision. Appellees replied to the plea in abatement by a general denial. On the issues formed there was a hearing, resulting in a finding and judgment for appellees. Appellant filed no remonstrance or other pleading, and on final hearing the proposed work was ordered established, without award of damages, or assessment of benefits, to appellant.

[2][3] It is contended here (1) that the drainage act of 1907 is unconstitutional and void; (2) that the taking of 300 feet of appellant's roadway is referable to the eminent domain power, rather than the police power, and entitled appellant to damages for the taking; and (3) that if the taking is referable to the police power due process of law demands compensation to appellant to the extent of the value of the earth taken in the construction of the 300-foot channel.

Is the drainage act of 1907 unconstitutional for the reasons urged? Appellant's contention is based on its construction of a portion of section 4 of the act (section 6143, Burns 1914) relating to remonstrances, which provides that, on the making of the drainage commissioner's report, “ten days *** shall be allowed to any owner of lands affected by the work proposed and reported benefited or damaged, to remonstrate against the report; the remonstrance *** may be for any of the following causes: First, that the report of the commissioners is not according to law.” This is followed by the enumeration of eight other causes, applicable only, in express terms, to persons owning lands reported as affected and either damaged or benefited. The tenth statutory cause of remonstrance is grounded on the insufficiency of the proposed plan to properly drain the land affected. Other...