Woodring v. McCaslin

• Decision Date: 01 April 1914
• Docket Number: 22,275
• Citation: 104 N.E. 759,182 Ind. 134
• Parties: Woodring et al. v. McCaslin et al
• Court: Indiana Supreme Court

104 N.E. 759

182 Ind. 134

Woodring et al. v. McCaslin et al

No. 22,275

Supreme Court of Indiana

April 1, 1914

Rehearing Denied June 30, 1914.

From Madison Circuit Court; Charles K. Bagot, Judge.

Drainage proceeding on the petition of Pearl McCaslin and others. From a judgment locating and establishing the drain, Andrew Woodring and others appeal.

Reversed.

Orr & Orr, for appellants.

Kittinger & Diven, for appellees.

OPINION

Spencer, J.

This action has its origin in a petition filed by appellee McCaslin in the Superior Court of Madison County, asking for the location and construction of a public ditch or drain in Madison County. Appellants filed separate and several pleas to the jurisdiction of the court over the subject-matter of the proceedings, to which pleas appellees filed demurrers. These demurrers were overruled and, on motion by appellees the cause was venued to the Madison Circuit Court where such proceedings were had as resulted in a judgment locating and establishing said drain. This appeal follows.

The sole question presented for our consideration requires a construction of §§ 6141, 6142, 6174 Burns 1914, §§ 2, 3, 19 of the drainage act of 1907 (Acts 1907 p. 508).

Section 6141, supra, provides that jurisdiction for the location and construction of a new drain is in the circuit or superior court of the county in which the lands of the petitioners are located, and where the drain extends into two or more counties, in the circuit or superior court of the county having the greatest length of the proposed drain. Section 6142, supra, provides that if the drainage commissioners determine that the proposed improvement is practicable and of public utility and that the cost thereof will be less than the benefits to be derived "they shall proceed and definitely determine the best and cheapest method of drainage, the termini and route, location and character of the proposed work. * * * They may determine that the method of drainage shall be by removing obstructions from a natural or artificial watercourse; or diverting such watercourse from its channel, by deepening, widening or changing the channel of such watercourse; by constructing an artificial channel, with or without arms or branches; by providing that said work may be the tiling of an already existing public open drain or tiling an already existing public open drain and constructing as a part of said work a new drain; by providing that such drain shall be open or tiled and covered, or partly opened and partly tiled and dug by shovel, dredge or otherwise; by constructing levees or dykes; or by any or all of such methods combined." (Our italics.) Section 6174, supra, provides that "should the owner of any land, or any corporation, affected by the construction, change, improvement or extension of any work of drainage under this or any former law of this state, be of the opinion that such work, or any part of it, may be more economically kept in repair, or may be made more efficient for its purpose, by tiling and covering; by removing tile and making the drain open; by changing the line of the drain or extending its length; or by making any other change in the work as originally constructed, such landowner or corporation may apply for such change, improvement or extension by filing a petition therefor with the circuit or superior court, or with the board of commissioners, as the case may be, of the county in which the proceedings were had for the construction of such work."

Appellees' petition, on its face, purported to be for the construction of a new tile drain over a certain described course, most of which was located in Madison county. Appellants, however, took the position that the real purpose of the petition was to secure the improvement, by tiling, of part of an existing open drain which had been constructed under the direction of the Delaware Circuit Court and contended that the improvement of such open drain was exclusively within the jurisdiction of said court. This issue was properly raised by the pleas to the jurisdiction of the Madison county courts (Kemp v. Adams [1905], 164 Ind. 258, 261, 73 N.E. 590), and was thus stated by the Madison Circuit Court in its special finding of facts: "The question to be determined on the trial of the pleas herein is whether or not a person having the right to proceed under Section Nineteen (Sec. 6174 Burns 1908), may ignore said Section and proceed under Section Two (Sec. 6141 Burns 1908) to accomplish the same object and remedy provided for by said Section Nineteen in a court different from the court in which the original proceedings were had. In other words, whether or not a person desiring to deepen, widen, straighten, tile, or change a drain already established, has the option to proceed to petition therefor as an independent drain under Section Two in the Court of the County in which the proposed drainage is located; or proceed by petition to tile under Section Nineteen in the Court establishing the original drain; or whether he is obliged to proceed under Section Nineteen, to the exclusion of Section Two."

The court concluded that a petitioner has the option above suggested and stated in its conclusions of law "that the election of the petitioners to proceed under Section Two (2) to establish an independent drain and file a petition therefor in the county in which the said proposed drain is located, gave the court jurisdiction to determine said proceedings under said Section Two (2) without regard to the fact that the petitioners would also have the right to proceed under Section Nineteen (19), and notwithstanding the further fact that had they proceeded under said Section Nineteen (19), the court in which the proceedings were instituted would not have had...