No. 7649 | Ind. | Nov 15, 1880
The appellees petitioned the board of commissioners of Grant county “to establish a ditch,” the prayer of the petition was granted and the ditch established. Appellants carried the case by appeal to the circuit court,where trial was had, resulting in a verdict and judgment in favor of the appellees.
Motions were made to dismiss appellees’ petition and to set aside the report of the reviewers. These the court overruled.
Appellants urge, in support of their attack upon the petition, that it is insufficient, because it does not properly describe the ditch sought to be established. The description is as follows : “Said, ditch is to commence at a point about forty rods west of the east line of section 13, T. 25 N., range 9 E., in said county, and about thirty rods south of the north line of the S. E. quarter of said section running; thence west about 120 rods to the middle line of said section running north and south. Thence north on said middle line about twenty rods to the center of said section. Thence due west about sixty rods. Thence northeastwardly about one hundred and sixty (160) rods, crossing-the north line of said section at a point about forty (40) rods-west of the center ,of said north line, into section twelve (12),. township 25 N., range 9 E., in said county. Thence northeast about one hundred and twenty (120) rods, crossing the' north line of the S. E. quarter of section twelve (12) at a point about forty (40) rods east of the west line of said quarter section. Thence northwestwardly about one hundred rods-to a point at or near the center of said section twelve (12), and thence north a distance of about eighty (80) rods or more, and terminating on the south bank of Black Creek, being about two miles in length or more.”
The 2d section of the act under which these proceedings-were instituted requires a petition setting forth the necessity for the proposed ditch, “with a general description of the'
It is contended that the petition is insufficient, because it does not set forth the necessity for the proposed ditch. The ■statute does in express terms require that a petition shall be filed “setting forth the necessity” of the proposed ditch. The petition does not *in terms aver that there is any necessity for the ditch, nor does it attempt to specifically state facts directly showing a necessity for the establishment of the ditch petitioned for. It does, however, aver “that the construction of the proposed ditch will be conducive to the pub-" lie health, convenience and welfare, and will be of public benefit and utility.” We think a ditch which is “conducive to the public health, convenience and welfare,” and which is .•also “of public benefit and utility,” may be justly regarded as necessary. It is evident that the Legislature did not use the word “necessity” as meaning that “which is absolutely requisite,” but as meaning that “which is essentially requisite.” Certainly, what will benefit the public and conduce to 'the general health and welfare, may be regarded as “possessing the quality of being necessary.” The statements of the petition show with reasonable certainty that there was a necessity for the establishment of the ditch. •
The overruling of appellants’ motion to set aside the re
The appellants’ assignment of error based upon the ruling-denying a new trial must be sustained. The court, over the-objection of the appellants, permitted the report of the reviewers to be read in evidence. This was plainly erroneous. McKinsey v. Bowman, 58 Ind. 88; Freck v. Christian, 55 Ind. 320" court="Ind." date_filed="1876-11-15" href="https://app.midpage.ai/document/freck-v-christian-7041510?utm_source=webapp" opinion_id="7041510">55 Ind. 320; Turley v. Oldham, supra; Beck v. Pavey, supra; Coyner v. Boyd, 55 Ind. 166.
Other questions are discussed, but it is not necessary for us to consider them, as the cause must be again tried, and it is not probable that these questions will again arise; nor is it important to the rights of the parties that we should now pass upon them.
Judgment reversed.