Watson v. Armstrong

• Decision Date: 26 June 1913
• Docket Number: 22,279
• Citation: 102 N.E. 273,180 Ind. 49
• Parties: Watson et al. v. Armstrong et al
• Court: Indiana Supreme Court

102 N.E. 273

180 Ind. 49

Watson et al. v. Armstrong et al

No. 22,279

Supreme Court of Indiana

June 26, 1913

From Gibson Circuit Court, Herdis F. Clements, Judge.

Proceedings for the construction of a drain by Warrick Armstrong and others, in which William T. Watson and others remonstrated against the report of the drainage commissioners as to the assessments against the lands of remonstrants. From a judgment confirming the assessments, the remonstrants appeal.

Affirmed.

Morton C. Embree, Lucius C. Embree and John W. Brady, for appellants.

Luther Benson, Claude A. Smith and Henry Kister, for appellees.

Erwin J. Spencer, C. J., not participating.

OPINION

Erwin, J.

This was a proceeding instituted under the drainage laws of 1907 (Acts 1907 p. 508, § 6174 Burns 1908), by appellee Richard Sumner and others for the construction of an open ditch, by the widening and deepening beyond the original specifications of a public ditch, previously established and constructed by order of the Gibson Circuit Court, upon and along the same route, and known as "The Sumner Ditch." In due course of the proceedings the report of the drainage commissioners was filed, which included an assessment against the lands of appellants, Blood, Blood and Blood, as joint owners of certain lands as tenants in common and an assessment against the lands of appellant William T Watson. In due time appellants, Blood, Blood and Blood, filed a remonstrance as follows: (1) Because as to each tract and parcel of land above described separately, the same will neither be affected nor benefited to the extent of the assessment reported against the same as aforesaid, by the proposed work if accomplished. (2) Because it will not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits. (3) That the following described tracts, or parcels of the aforesaid lands of these remonstrators, to wit: (Here follows a description of each separate tract of land) and each one thereof separately are assessed too much as compared with the following described other lands, owned by other persons, and reported in said report of said drainage commissioners, as benefited in the amount set opposite the description of same, as follows: (Here follows description of other lands belonging to other persons than appellants.)

Appellant William T. Watson filed a separate remonstrance for statutory causes as follows: (1) That none of said tracts and parcels of land will be affected or benefited to the extent of the assessment made against the same in said report by the proposed work if accomplished. (2) That it will not be practicable to accomplish the proposed drainage without an expense exceeding the aggregate benefits. (3) That the proposed work as decided upon and reported by said commissioners will not be sufficient to properly drain the land to be affected or any one of the tracts and parcels of land hereinbefore described.

The trial of the cause resulted in the court making a few minor changes in the assessments, but left them practically as made by the commissioners. From the judgment of the court in establishing said drain and confirming the assessments, appellants appeal to this court. The assignment of errors presents the questions to this court, that the decision of the court is contrary to law, and is not sustained by sufficient evidence.

Appellants contend that the court was not authorized to make an assessment against their lands, unless they derive a special benefit from its construction. This contention is true. Palmer v. Stumph (1868), 29 Ind 329, 337; Law v. Madison, etc., Turnpike Co. (1868), 30 Ind. 77, 79; Heick v. Voight (1887), 110 Ind. 279, 285, 11 N.E. 306; Ross v. Stackhouse (1888), 114 Ind. 200, 206, 16 N.E. 501; Lipes v. Hand (1886), 104 Ind. 503, 605, 1 N.E. 871, 4 N.E. 160; 25 Am. and Eng. Ency. Law 496; Cooley, Const. Lim. (4th ed.) 634. Whether a proposed drain is or is not a special benefit to the land assessed for its construction, is a question of fact to be determined...