Williams v. Osborne

• Decision Date: 04 February 1914
• Docket Number: No. 22,200.,22,200.
• Citation: 181 Ind. 670,104 N.E. 27
• Parties: WILLIAMS v. OSBORNE et al.
• Court: Indiana Supreme Court

181 Ind. 670

104 N.E. 27

WILLIAMS

v.OSBORNE et al.

No. 22,200.

Supreme Court of Indiana.

Feb. 4, 1914.

Appeal from Circuit Court, Jasper County.

Action by Cordelia M. Williams against W. Frank Osborne and others. From a judgment for defendants on demurrer, plaintiff appeals. Affirmed.Charles V. McAdams and Charles E. Thompson, both of La Fayette, for appellant. Abraham Halleck and George A. Williams, both of Rensselaer, for appellees.

MYERS, J.

Appellant seeks to enjoin the construction of a proposed drain and to set aside, cancel, and enjoin the collection of assessments levied on her lands and to enjoin interference with, obstruction, and destruction of an already existing public drain, on the line of which it is proposed to construct the drain in question. There was a former appeal to this court in the course of this proceeding. Williams v. Dexter, 175 Ind. 659, 95 N. E. 113. The questions presented arise upon the ruling of the court in sustaining a demurrer to the complaint.

It is alleged in the complaint in substance: That appellant is the owner of certain described tracts of land in Jasper county, aggregating 520 acres. That on November 5, 1902, her grantors were the owners of certain other described tracts, aggregating 760 acres. That, by proceedings had before the board of commissioners of Jasper county at its November session 1902, a judgment was entered establishing a main public drain in said county, over a route described by termini, courses, and distances, 48,112 feet in length, with a lateral drain likewise described, 17,000 feet in length, having its outlet at station 309 on the main ditch. That 12,112 feet of the main drain and 10,000 feet of the lateral from the source toward the outlet were to be open drains, to be constructed with scrapers or otherwise, at an estimated cost on both of $2,814.65, and the remainder of each was to be constructed by a dredge at an estimated cost of $9,290.65. That a contract was let by the auditor and the work constructed by the contractor, and accepted by the board of commissioners December 2, 1904. That the drainage so constructed remains as originally constructed without any change or modification by any subsequent proceeding, order, or judgment of any court. That the lands described as owned by plaintiff's grantors on November 5, 1902, were assessed benefits in the sum of $1,615, which was paid by the then owners of the land, toward the construction of the drain, and the other landowners assessed paid their assessments which were used in the construction of the drain. That by proceedings begun in the Jasper circuit court August 11, 1909, a judgment was entered May 6, 1910, establishing a drain over the same line, and in addition extending the lateral drain 1,900 feet, and establishing another lateral 25,960 feet, which entered into the main drain at the same point as the first lateral, and to the second lateral added two other laterals. That 17,172 feet of the original drain was not changed in any way from the first construction, and that that is the only portion of the original drain which touches and drains the lands of the petitioner, which she owned when the first proceeding was had, and her said lands are assessed in the second proceeding $1,194.91. That the only work to be performed on the old drain over which the new drain is established consists of widening and deepening such drain by a floating dredge. That the estimated cost of the new drain is $14,563.72, and the assessed benefits $17,426.08, and that the lands not owned by appellant when the original proceeding was had, but now owned by her were not assessed in the second proceeding. That the defendant Osborne was appointed construction commissioner, and he qualified and advertised the letting of the work and it was bid off, and the contract awarded to the defendant Comer, and that at the time and place of the letting she gave notice to the commissioner and all prospective bidders, including Comer, that she intended to resist the construction of such drainage, and the collection of the assessments, and immediately after the award to Comer gave him the same notice. That after the ascertainment of the cost of the work, which exceeds $5,000, the commissioner apportioned the costs and expenses to the lands affected and benefited, and the board of commissioners is purposing to, and unless restrained will, issue bonds and place the assessments against her lands on the tax duplicate as liens against her land. The length, character, manner of construction, and costs of each of the laterals are alleged. That plaintiff appeared in the circuit court in such proceeding and filed a remonstrance against the benefits assessed in such proceeding against the real estate so owned by her. Her said remonstrance was not sustained at the trial and she appealed to the Supreme Court of Indiana, and the latter affirmed the judgment. That she did not, in said proceeding in said circuit court, or in said Supreme Court, at any time, or in any manner, present any objections, exceptions, or remonstrance, raising any question in either of said courts as to the jurisdiction of said circuit court over the subject-matter of the widening, deepening, or extending the length of the drains so established by the board of commissioners, and did not in such proceeding present to either of said courts any objection to the jurisdiction of said circuit court over the subject-matter of the proceeding, and, in such proceeding and pretended decree therein entered, no question was, at any time, presented by any party to such proceeding questioning the jurisdiction over the subject-matter of the proceeding, and the record of said cause in said circuit and Supreme Court shows that no question was presented to or decided by either court, relating to the jurisdiction of said circuit court over the subject-matter of the proceeding, or any part of it. That the record of the proceedings and judgment in the circuit court did not and does not show that the old drains proposed to be widened, deepened, and extended, by virtue of such pretended decree, had, prior to the commencement of such proceedings, been established and constructed by the commissioners. That the petition for such drainage in the circuit court reads as follows, except the description of the lands believed to be affected (setting it out), in which the termini, courses, and distances were set out. And in one portion of this petition it is averred that, commencing at a certain point, it runs to a point at the source of the old Lakin ditch, and then continues by courses and distances to the line of the old Union Scott Cooper ditch, and it is alleged that the above-described line of ditch below the first one-half mile thereof is along and upon the line of an old ditch heretofore constructed, and which is insufficient to drain the land assessed for its construction; that it is the wish and intention of the petitioners to deepen and widen the old drain so as to make as nearly as practicable a uniform grade line from the source of the proposed drain to the outlet thereof. Then follow the usual allegations as to benefits, public utility, costs, etc., and that it can be best accomplished with a steam dredge boat. That the report of the drainage commissioners, appointed upon said petition and upon which the pretended order and judgment of said circuit court is founded, did not and does not state that the old drains, along and over which the greater portion of the proposed drainage is to be constructed, as hereinbefore stated, had theretofore been established by any court, or that the same were public drains established by law. That by the proceedings and record in said cause it was not at any time called to the attention of the circuit court that the old drains, which it is proposed by said pretended drain to widen, deepen, and extend, had theretofore been established by the judgment and decree of the board of commissioners, and that the decree of said circuit court does not disclose that the said proposed drainage therein provided for consists in the widening, deepening, and extending of the old drains theretofore established by said commissioners. That the main line of said drain so established by said commissioners' court was and is known upon the records of said county as the “Scott Cooper ditch,” and the “Union Scott Cooper ditch,” and that the lateral to such main line so established by said commissioners' court was and is known upon the records of said court as the “Lakin ditch.” That the defendants Osborne, commissioner, and Comer, contractor, as aforesaid, are threatening to, and will unless restrained by this court, enter upon the line of said drains so established by said commissioners' court and take possession of that portion of the same so ordered by said court to be widened, deepened, and lengthened as hereinbefore averred, and that the said defendants, unless restrained, will take possession of such portions of drains and alter, change, modify, and destroy the same, and will continue in possession thereof for many months, to wit, ten months, and will, while in possession thereof, obstruct the use of the same by this plaintiff, and other landowners whose lands now drain into the same, and who were assessed to pay for the construction of the same in said commissioners' court, and that the said defendants, if permitted to alter, change, modify, and destroy such portions of said drain so established by said commissioners' court, will do so in such manner as to provide for the drainage of lands into such drains so to be altered and changed, that did not drain thereto or therein as the same were established by the commissioners, and that the pretended order of said circuit court provides for the drainage of lands into such modified, changed, and altered drainage which did not drain therein as established by said commissioners, and which said lands were not...