167 Ind. 127 | Ind. | 1906
This is a proceeding for the establishment of a ditch, begun before the Board of Commissioners of the County of Allen, in which appellees were petitioners and appellants were remonstrators. The board rendered a final judgment establishing the ditch, from which an appeal was taken to the circuit court, where a trial by jury resulted in a verdict and judgment in favor of the petitioners.
Appellants jointly and severally assign as error the overruling of their motion for a new trial.
Complaint is made in the motion for a new trial of the insufficiency of the evidence to sustain the verdict, and of the giving and refusing to give certain instructions, and other errors of law occurring upon the trial.
We cannot reverse the case upon the weight of the evidence.
The court refused to give the following instruction requested by appellants: “If you find from the evidence in this cause that the plaintiffs, who are the petitioners for the construction of the proposed ditch, permitted the ditch now existing across their lands to be trampled in by stock, or otherwise to become filled up and in need of cleaning, and you find that the exclusive benefits to be derived from the construction of the ditch in question here would be to clean out and put in proper condition said ditch now existing, and you further find that said filling up of said existing ditch was caused by neglect or fault of the plaintiffs alone, then you would be authorized to find that the proposed ditch is not of public utility, as a person cannot allow a ditch on his own premises through his own fault or neglect to become out of repair and then call upon his neighbors or parties owning lands along the route of the proposed ditch to help him pay for necessary cleaning of the same, and if you find such facts to exist it would then be your duty to find for the defendants.”
These two opposing instructions present the controlling contentions of the parties with respect to the public utility of the proposed ditch. The new work consisted of widening and deepening a section of an existing public ditch. The evidence as presented to us tends strongly to prove that by cleaning out the existing ditch to its original dimensions all the uses of the proposed work would be effectually accomplished.
Section 5637 Burns 1901, Acts 1893, p. 271, provides that after allotments for repairs have been made, “it shall be the duty of the owner of each tract of land * * * to clean out and repair the portion of said work so allotted to such tract of land * * * between the first days of
Section 5639 Burns 1901, Acts 1889, p. 53, §8, provides : “If the portion or any part thereof of such ditch or drain so allotted to the land of any owner, * * * becomes filled or obstructed by the negligence of any owner or occupant of any land, or by cattle, horses, hogs or other stock of such owner or occupant, it shall be the duty of such owner or occupant to remove all such obstructions or fillings, at his own expense, before the 31st day of August of each year.”
In discussing the provisions of §§5637, 5638, supra, in the case of Daggy v. Ball (1893), 7 Ind. App. 64, 66, the Appellate Court said: “It will be observed that these sections do not confer upon the trustee any discretionary power to examine the drains, and ascertain and determine whether they really need cleaning out in order to enable them to subserve their purpose, nor do these sections require the owner to clean out if really needed to make the ditches work right. On the contrary, by these sections the law imposes upon the owner the absolute duty of cleaning out and repairing annually. Recognizing that in the course of nature, by the action of the running water, and by frosts and falling rains and other natural causes, there must necessarily be within a year more or less disturbance of the ditch from its original condition, the law determines the frequency with which these cleanings shall be made.”
Instruction three is subject to criticism; but in view of the conclusion already reached and the probability that the whole series will be rewritten, we will not now discuss its imperfections.
We have examined the seventh and tenth of appellees’ instructions, and, while somewhat vague and of doubtful applicability to the evidence, we find no harmful error in them.
8. In response to the question: “Would the construction of a larger ditch have any more effect in taking off the water than if the present ditch were cleaned out?” witness Ezra Worden answered: “I do not think it would, because it is a level country.” This question was objected to, and the answer stricken out upon motion. There was no error in this ruling. The question called for, and the answer expressed, the opinion of the witness upon the merits of appellants’ contention. The form of the question was objectionable in case the opinion of a lay witness were competent; but in the present instance the facts with regard to the effectiveness of the old ditch when in proper repair, and when enlarged as proposed, could be fully placed before the jury, and the opinion of the witness upon this issue was not competent. Yost v. Conroy (1884), 92 Ind. 464; Johnson v. Anderson (1896), 143 Ind. 493; Loshbaugh v. Birdsell (1883), 90 Ind. 466;
The errors pointed out entitled appellants to a new trial. The judgment is reversed, with a direction to sustain appellants’ motion for a new trial.