174 Ind. 296 | Ind. | 1910
This is a proceeding under section seventeen of an act of 1907 (Acts 1907 p. 508, §6151 Burns 1908), by appellees for the construction of a ditch, less than two miles
Appellees filed their motion to strike out this remonstrance, for the following reasons: (1) Because it was not filed within ten days after the filing of the surveyor’s report, exclusive of Sundays and the day of filing. (2) Because it was not filed within ten days after notice was served on said remonstrator, exclusive of Sundays and the day of service of said notice.
The board sustained appellees’ motion to strike out the remonstrance, and appellant appealed to the circuit court, where the same motion was refiled and again sustained, and cause dismissed and remanded back to the commissioners, with instructions to proceed with the construction of the drain as provided by law.
The requirements in the special proceeding under §6151, supra, applying to the petition, reference and the filing, notice and hearing of the report and remonstrances, are distinctly and radically different from the requirements of §6142, supra, and must be complied with, without reference to the procedure prescribed in other sections of the act.
With respect to the report of the drainage commissioners, it is provided in §6142, supra, that in all cases where lands named in the report are not named in the petition, “the court shall fix the time for hearing the report, and it shall be the duty of the petitioners * * * to give ten days’ notice to the owners of such lands of the filing of such report in the same manner as is herein required to be given of. the filing and docketing of the petition, which notice shall state the time for hearing such report. * * * The same proceedings shall be had in regard to such report as if all the lands mentioned therein, and the owners thereof, had been named in the original notice of the filing of the petition. ’ ’
Under the latter provision it has been held by this court that a landowner brought into the proceeding by the report of the drainage commissioners must exercise his right to remonstrate within ten days after the service of notice of the hearing of the report. Goodrich v. Stangland (1900), 155 Ind. 279; Keiser v. Mills (1904), 162 Ind. 366.
It will be observed: (1) That in the construction of a drain under §6151, supra, the proceeding must be begun by filing the petition before the board of commissioners, instead
The improvements authorized in this section — with all arms not exceeding two miles in length and costing not to exceed $300 — amount to nothing more than neighborhood drains, which may be and should be constructed speedily, economically and without calling into operation the more comprehensive, tedious and expensive proceedings necessary in larger enterprises. Its provisions accomplish the evident purpose of the lawmakers to carry these small and inexpensive improvements outside the general class into a class of their own. We recall some of the differences: Notice of filing and docketing the petition is dispensed with, and time and money saved. The expense of three drainage commissioners is saved, by conferring upon the county surveyor full power to view, consider, locate and assess all benefits and damages, which duty he must perform within thirty
There is not a syllable anywhere in the law relating to drains of this class that requires an objector to file his remonstrance before the day set for the hearing. Besides, as a further evidence of dispatch and class distinction, of the fifteen days allotted for notice of the hearing of the surveyor’s report by the commissioners, three days are given the petitioner in which to serve the notices himself, and if
On the day of the hearing, if it is found that all persons named in the surveyor’s report have had more than ten days’ notice thereof, the board shall proceed to hear the report — that is, take up the report for consideration as to its form and sufficiency, and all statutory objections, if any have been filed thereto; but if it appears at the hearing that a landowner named in the report has not then had more than ten days’ notice, the cause shall be continued until he has had such notice, when the hearing shall proceed. It is thus shown that the landowner is entitled to full ten days, after notice of the hearing, to determine upon and prepare to present his remonstrance or other objection. The commissioners have no power or jurisdiction to cut off his defense until he had been afforded such opportunity.
Appellees ’ contention, that a remonstrance to be available under §6151, supra, must be filed within ten days after the filing of the surveyor’s report, appears to us to be without foundation. It is otherwise provided in §6151, supra, and may undoubtedly be filed on the day set for the hearing. We, therefore, hold that the remonstrance filed by appellant on the day set for hearing the surveyor’s report by the board of commissioners was timely filed, and appellees’ motion to strike it out was erroneously sustained.
The judgment is therefore reversed and cause remanded, with instructions to vacate the judgment of dismissal of appellant’s appeal from the board of commissioners of Delaware county, to overrule appellees’ motiou to strike out appellant’s remonstrance, and for further proceedings in har•mony with this opinion.