Wright v. Wilson

• Decision Date: 14 May 1884
• Docket Number: 10,109
• Parties: Wright et al. v. Wilson
• Court: Indiana Supreme Court

95 Ind. 408

Wright et al. v. Wilson

No. 10,109

Supreme Court of Indiana

May 14, 1884

From the Cass Circuit Court.

D. D Dykeman, M. Winfield and Q. A. Myers, for appellants.

R Magee and D. B. McConnell, for appellee.

OPINION

Best C.

The appellee instituted these proceedings before the commissioners of Cass county, to establish a ditch under the provisions of the act of March 9th, 1875. The commissioners of said county, on the 9th day of September, 1879, appointed viewers who made their report on the 18th day of said month and on the 20th day of October thereafter, the appellant Williamson Wright appeared before said commissioners and remonstrated against the establishment of such ditch. The cause was then set for trial on the 22d day of said month when said appellant withdrew his remonstrance and consented to the establishment of such ditch, which was then accordingly done. Thereafter said Wright and the other appellants, the latter not having appeared before the commissioners, appealed from the order made by the board to the Cass Circuit Court and there moved to dismiss the case on the ground, among others, that the description of the ditch was insufficient, and that the petition did not state facts sufficient to constitute a cause of action. This motion and a like motion by the appellants, other than Wright, were overruled, a trial had and a verdict with answers to interrogatories was returned for the appellee, upon which, over a motion for a new trial and in arrest of judgment, final judgment was rendered upon the verdict. These rulings have been assigned as error and will be considered in the order of their statement.

The ditch sought to be established was in Cass county, and in the petition it was thus described: "Beginning at a point indicated by a stake on the east side of the C. C. & I. C. railroad, and bearing east about twenty-seven rods from the southwest corner of the northwest quarter of the northeast quarter of section number eight, township twenty-five north, of range three east; thence northwest parallel to the line of said railroad through the northwest quarter of the northwest quarter of said section eight; thence through the northeast part of the northeast quarter of section seven, same township and range, being the land owned by your petitioner; thence through the northeast part of the southeast quarter of section number six, owned by Isaac Benngamer, to the intersection of the old channel at the north side of a pond, thence northwest with curves in channel to west side of the culvert under said railroad to the point of outlet, bearing southeast from the northwest corner of the southeast quarter of said section number six, same township and range as aforesaid, where the same terminates at said culvert."

The second section of the above named act only requires a petition for the establishment of a ditch to contain "a general description of the proposed starting point, route and terminus," and we think in this respect this petition is sufficient. It gives the starting point, route and terminus. The starting point is at a stake on the east side of the railroad about twenty-seven rods from the southwest corner of the northwest quarter of the northwest quarter of section eight, etc., the route is parallel with the railroad in a northwest direction through several parcels of land described, to an old channel in the northeast part of the southeast quarter of section six; thence with the channel to the west side of the culvert under said railroad in said quarter section. This description is quite general, especially that portion describing the route, but as the statute does not require an accurate description we think this sufficient in this respect. Milligan v. State, ex rel., 60 Ind. 206; Corey v. Swagger, 74 Ind. 211; Coolman v. Fleming, 82 Ind. 117.

The petition has not been assailed in any other respect, and, therefore, we assume that the facts averred constituted a cause of action under this statute.

All the other reasons assigned for the dismissal of the action were dependent upon facts not apparent of record, and as these were not found to be true by the court, we can not say whether the court disregarded them because not true in fact, or not sufficient in law. In this condition of the record its ruling does not appear erroneous. These motions were, therefore, properly overruled.

It appears from the record that the board of commissioners established the ditch at its October meeting, in 1879, when it was convened for the purpose of receiving the reports of the school trustees, and, as this was not a regular meeting, and was not specially called to consider the establishment of this ditch, the appellant contends that the board had no power to make the order, and hence that the circuit court acquired no jurisdiction of the subject-matter, and, therefore, the appellants' motion in arrest of judgment should have been sustained. This position proceeds upon the notion that an order thus made was a mere nullity; that the appeal simply operated to vacate it, and that the proceedings were thereby discontinued or remained pending before the commissioners. We think otherwise. If the board of commissioners had jurisdiction, the mere fact that it made an order establishing the ditch at an unauthorized time did not prevent the circuit court from acquiring jurisdiction by appeal. The appeal vacated the order and transferred the proceeding to the circuit court, where it stood for trial de novo, however many errors may have been committed before the board of commissioners, and without reference to their character. Britton v. Fox, 39 Ind. 369; State, ex rel., v. Brewer, 64 Ind. 131; Corey v. Swagger, supra. The motion in arrest was properly overruled.

This brings us to the motion for a new trial, which embraced many reasons. Some of these will now be noticed. The evidence tended to show...