164 Ind. 658 | Ind. | 1905
By this action tbe board of commissioners of tbe county of Lake seek to recover a money judgment for certain costs and expenses arising out of a proceeding instituted by appellees in tbe Lake Circuit Court to establish
Tbe material facts disclosed by tbe complaint may be stated as follows: In June, 1892, appellees, wbo, among others, were tbe owners of lands situated in tbe valley of the Little Calumet river, in Lake county, Indiana, petitioned tbe Lake Circuit Court to establish a public drain for tbe purpose of draining lands situated in said valley. Tbe action was prosecuted under tbe provisions of an act of tbe legislature approved April 6, 1885 (Acts 1885, p. 129, §5622 et seq. Burns 1894). Subsequently a number of landowners wbo were parties to tbe proceedings remonstrated, and thereafter tbe cause was venued to tbe Porter Circuit Court, wherein, at tbe May term, 1896, such steps were taken as resulted in tbe court’s sustaining tbe petition, and ordering that tbe proposed work be constructed, and appointing one Hazelgreen as commissioner to superintend and carry out tbe construction of tbe improvement. Damages and benefits were assessed, apportioned and confirmed by tbe court. Thereafter some of .the parties wbo bad filed remonstrances appealed, from the judgment of tbe Porter Circuit Court ordering said ditcb to be established, to tbe Supreme Court of this State. This appeal was dismissed. Before tbe work of construction bad commenced, but after the letting thereof bad been advertised, and bids bad been received for said construction, an action was commenced in the federal court to enjoin Hazelgreen, tbe commissioner, from proceeding with tbe work. During the pendency of tbe latter action one Lyon, wbo was tbe owner of lands bordering on tbe Little Calumet river in tbe state of Illinois, commenced a suit in tbe federal court to enjoin tbe commissioner from undertaking to construct tbe ditcb. A temporary injunction was granted therein, by which said com
The question presented requires a review of parts of the drainage act of 1885. Section 5622, supra, (the same being section one of the act in force in 1892, at the time the proceedings herein were instituted), provides for the appointment by the board of commissioners in each county of a drainage commissioner, who, before entering upon the discharge of his duties, is required to take an oath of office and execute an official bond. Section 5623 Burns 1894, Acts 1885, p. 129, §2, authorizes persons whose lands will be benefited by drainage, which cannot be accomplished without extraordinary labor and expense as determined by the court, to petition the circuit or superior court of the county
Section 5624 Burns 1894, Acts 1885, p. 129, §3, provides, among other things, for docketing the cause in court, and for remonstrances, etc., and authorizes the court to dismiss the petition at the cost of the petitioners upon a remonstrance in writing against the construction of the work, signed by two-thirds of the landowners. In the event no such remonstrance is filed, if the "court considers the petition sufficient, it is required to refer the matter to the drainage commissioners, as therein provided, who are to make a personal inspection of all the lands described, and of all other lands likely to be affected by the proposed work, and they are required to report to the court their finding relative to benefits and damages and other matters as therein provided.
Section 5625 Burns 1894, Acts 1885, p. 129, §4, provides for filing remonstrances by aggrieved landowners in respect to the public utility of the work and against the amount of benefits and damages as assessed by the commissioners.
If the judgment of the court be against the remonstrances on certain grounds therein specified, the assessments made by the commissioners shall be confirmed, and the order confirming the same shall be final and conclusive. If, however, the judgment of the court be in support of the remonstrance on certain grounds, the proceedings must be dismissed at the cost of the petitioners, including the cost of the per diem of the commissioners and all court costs and costs of the trial of the remonstrance. If there be no remonstrance, or if the finding and judgment shall be in all respects against the remonstrance on certain enumerated
Ry §5626 Burns 1894, Acts 1885, p. 129, §5, it is provided that the commissioner in charge of the execution of the work shall proceed to have the same constructed, and shall pay all costs not otherwise adjudged, and shall pay all expenses incident to the construction of the work, etc., and such other costs and expenses out of the funds arising from the assessments as made and confirmed, as the court shall deem proper. By this section tire commissioner is further required to reimburse the county, out of the assessments collected, for whatever money, under the provisions of the act, may have been paid out of the county treasury.
Section 5644 Burns 1894, Acts 1885, p. 129, §11, provides: “For their services under the third section of this act the drainage commissioners and engineer, and the chain-man, axrnan and rodman, if any shall be by them employed, shall bo allowed and paid out of the county treasury such compensation as the court shall determine, not to exceed $4 per day to the surveyor, $3 per day to the drainage commissioners, except the surveyor, and $1.50 per day for the cliainman, axrnan and rodman. Provided, that the county treasury shall be reimbursed in such sums as are so paid out by the assessments collected as hereinbefore provided.”
1. The sections of the law to which we have referred are those material to the question herein presented. The complaint, in addition to the facts averred, contains conclusions of the pleader, but these are of no avail, for the well-settled rule is that a pleading must be tested by facts alleged, and not by the conclusions therein.
2. The facts, given briefly, are: Appellees, under the provisions of the statute in question, petitioned the court to
After the final order of the court establishing the ditch and confirming the assessments and assigning the execution • of the construction to a commissioner, the proceedings then passed beyond the control of the petitioners, and they had
3. The contention of its counsel, however, is that appellees are liable to the county for the recovery of the money demanded under the provisions of the drainage act in question, but the principal infirmity of the complaint, under the facts therein averred, is that it wholly fails to state a cause of action within any of the provisions of this statute. The rule is well settled that where a party seeks to avail himself of a statutory remedy, he must bring himself substantially within the provisions of the act awarding such remedy. Harrison v. Stanton (1896), 146 Ind. 366, 370; Chicago, etc., R. Co. v. Barnes (1905), ante, 143.
In Sutherland, Stat. Constr., §§392, 393, this rule is stated as follows: “392. A statutory remedy.or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction, nor be made available or valid except on the statutory conditions, that is, by strictly following the directions of the act. 393. A party seeking the benefit of such a statute must bring himself strictly not only within the spirit but its letter; he can take nothing by intendment.”
4. As previously stated, it appears that the petitioners (appellees herein) successfully prosecuted the proceedings instituted by them to a point where the court ordered the
It follows that the complaint did not state a right of action, and the ruling of the court in sustaining the demurrer thereto was correct. Judgment affirmed.
Grillett, J., did not participate in the decision.