67 Ind. 206 | Ind. | 1879
The first paragraph of the complaint for obstructing a ditch is based oti section 13 of the act of
The second paragraph of complaint is as folloivs :
“And, for second paragraph of complaint, plaintiff says that defendant, on or about the 15th day of September, 1874, unlawfully, negligently and wilfully obstructed a ditch running across and draining the land of defendant, in said county, hy unlawfully and negligently'feeding and fattening a large number of hogs, to wit, one hundred hogs, in the field owned by defendant, through which said ditch runs, and permitted said hogs to wallow in and fill up and obstruct said ditch, and failed and refused to clean out the same, and on the-day of-, 187-, wrongfully and unlawfully threw and caused to be thrown into said ditch a large number of rails and timber, and failed and refused to remove the same therefrom ; that, in consequence of said obstructions, plaintiff1 was compelled to and did lay out and expend a large sum of money, to wit, $50.00, in removing the same; that by said ditch being filled up on the defendant’s laud, which was below that of plaintiff, the water was caused to back upon plaintiff’s land ; that that portion of the ditch on plaintiff’s land was tiled, and in consequence of said obstructions the water was forced back and the mud obstructed said ditch ; all to plaintiff’s damage $199.00, for which he prays judgment and other relief.”
A separate demurrer was filed to the first paragraph of complaint, alleging the insufficiency of the facts stated therein to constitute a cause of action, and sustained; also a separate demurrer, alleging the same ground, was filed to the second paragraph of the complaint and overruled. Exceptions were reserved on both rulings.
The answer to the second cause of action is as follows :
That the obstructions complained of were on lands
A demurrer to this paragraph, allegingthe insufficiency of the facts stated to constitute an answer, was overruled, and exception reserved. The parties stood by their pleadings, and the court rendered judgment for the appellee.
The first paragraph of the complaint is based on the 13th section of the act of March 11th, 1867, 3 Ind. Stat. 228; and the question arises whether that section is still in force, or whether it is repealed by section 20 of the act of March 9th, 1875; IR. S. p. 1876, p. 428. The former one provides that “Any person who shall obstruct any drain or ditch constructed under the provisions of this act, shall be liable to the person injured thereby, or to the person
As the section upon which the first paragraph of the complaint is based is no longer in force, the demurrer, to it was properly sustained.
The appellee raises the question of sufficiency as to the second paragraph of the complaint, by the assignment of across error; but that paragraph is so plainly good at common law, and also under the statute, that we think the court was right in overruling the demurrer to its sufficiency to constitute a cause of' action.
The appellant thinks the proceedings set up in his answer to the second paragraph of the complaint, under which the ditch was constructed, show on their face that they are void for irregularity, and therefore that the ditch
But, if the proceedings to .establish the ditch are held sufficiently regular to maintain it, then the appellee insists that the act of March 11th, 1867, is unconstitutional, and void, and therefore the ditch which was established under it can not be legally maintained. If this was an open question, it would deserve the most careful and serious consideration; but numerous ditches have been established and are now maintained under it, and its constitutionality has been thus so frequently recognized that we are bound by’the precedents. The objection to the act is, that it delegates the power-of eminent domain to one citizen, to be exercised over another citizen, for a private advantage, without declaring, upon its face, that the work to be accomplished shall be in some way of public utility ; but it has uniformly been held that a ditch can not be established under it without proof made that it is of public utility, and • in this way the act has been upheld; and in eases not on appeal, and where the evidence is not in the record, it must be held that such proof was made — the presumption running with the record when it is not contradicted upon its face. Now, since the act of March 11th, 1867, and the act of March 9th, 1875, must be construed together, and Seeing that the later act declares that such proposed work must be necessary and conducive to public
The judgment is reversed, and the cause remanded with directions to sustain the demurrer to the answer of the appellee to the second paragraph of complaint, and for further proceedings. .