Vizzard v. Taylor
| Decision Date | 17 September 1884 |
| Docket Number | 11,429 |
| Citation | 97 Ind. 90 |
| Parties | Vizzard v. Taylor, Treasurer |
| Court | Indiana Supreme Court |
From the Superior Court of Allen County.
The judgment of the court below is reversed, with instruction to overrule appellee's demurrer to the amended complaint and for further proceedings.
J Morris, C. H. Aldrich and J. M. Barnett, for appellant.
R. C Bell, for appellee.
This was an action by the appellant to enjoin the appellee, as county treasurer, from collecting an assessment placed upon the appellant's lands by virtue of certain proceedings before the board of commissioners to establish a ditch. The appellee's demurrer, for want of facts, was sustained to the appellant's amended complaint. This ruling was excepted to and is assigned for error in this court. The facts stated in the amended complaint are, so far as they are material to an understanding of the case, as follows:
The appellant had been the owner and in possession of real estate, upon which the assessment complained of was made since January 25th, 1875, at which time his deed from the former owner was duly recorded and the land transferred to his name for taxation upon the books of the county auditor. About September 1st, 1875, S. F. Baker and twelve others petitioned the board of commissioners of Allen county for the construction of a ditch, describing its proposed location. The ditch, as thus described, was not nearer than one mile, and, as finally constructed, not closer than sixty rods to the appellant's lands. The appellant's name was not mentioned in the petition for said ditch, in the notice given by the auditor, nor in any of the proceedings or assessments, but his lands were described therein as being owned by one David G. DeVore, who had no title or interest therein, and who was neither the tenant nor agent thereof. There was no finding of the county board that the appellant had notice as required by law, nor that he was in any way affected by the proposed work. The finding was, however, that said DeVore had been given the proper notice. The assessment was first placed upon the tax duplicate in DeVore's name and so remained two years, during which time appellant paid the taxes on his lands without knowledge of said assessment. In September, 1881, the county treasurer, discovering that DeVore did not own the lands and that they were owned by the appellant, caused the assessment thereon to be transferred upon the tax duplicate to the appellant's name. At the commencement of the action, the appellee, as such treasurer, was proceeding as provided by law to collect the assessment. The complaint avers, "that plaintiff did not stand by and consent to the construction of said ditch, and never had any knowledge or information of any kind that his lands had been described in said proceedings, or any of them, or that it was thought or supposed by any person that his said lands were benefited thereby; that said ditch was and is, and never can be of any benefit whatever to plaintiff's lands or any portions thereof, and if he had had any knowledge or information of the fact that his lands were described in any of said proceedings, he would have remonstrated and tried the questions arising thereunder; that by making the assessment and having all the proceedings (by and in pursuance of which the defendant threatens to sell plaintiff's lands) without notice to plaintiff as aforesaid, he has been prevented from having any opportunity to protect his rights, and his property is about to be taken, as he believes, without any process of law."
Appellant's complaint makes a strong case for equitable relief unless the facts stated show that he was bound by the assessment, on the ground of having had constructive notice of the proceedings to establish the ditch.
In City of Philadelphia v. Miller, 49 Pa. 440, it was said: "Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property." A statute which provides for assessments upon real estate for drainage or other purposes, without notice to the owners thereof, so that they may in some way, if they choose, contest the validity or the amount of such assessments, is void, as being in conflict with constitutional inhibitions against taking property "without due process of law." Campbell v. Dwiggins, 83 Ind. 473; Rutherford's Case, 72 Pa. 82 (13 Am. R. 655); Butler v. Supervisors, etc., 26 Mich. 22; Thomas v. Gain, 35 Mich. 155 (24 Am. R. 535); Darling v. Gunn, 50 Ill. 424; State v. Drake, 33 N.J. 194; Stuart v. Palmer, 74 N.Y. 183 (30 Am. R. 289); Cooley Taxation, 266. The statute under which the proceedings were had to establish the ditch mentioned in the appellant's complaint, being the act of March 9th, 1875 (1 R. S. 1876, p. 428), is not, however, open to the objection of not providing for notice. After filing before the county board a petition for the construction of a ditch, drain or watercourse, and after viewers have made their report, the auditor is, by the second section of the act, required to give notice in a newspaper and by posting copies of such notice in a mode specifically set forth, "which notice shall contain a pertinent description of the terminus of such proposed work, its direction and course from its source to its outlet, and the names of the owners of the lands that will be affected thereby."
This statute was not complied with, nor did the county board find that it was complied with as...
To continue reading
Request your trial