181 Ind. 698 | Ind. | 1914
Appellees filed a petition, in the circuit court, to establish a tile drain located wholly in Henry County. No demurrer was filed to the petition, nor was any objection made thereto until after the hearing on issues of fact formed by appellants’ remonstanees. On June 11, 1910, the petition was referred to drainage commissioners for report. Instead of designating the county surveyor as one of the commissioners, the court appointed Omar E. Minesinger, a competent engineer. §6142 Burns 1914, Acts 1907 p. 508, §3. To this appointment there was, at the time, no objection. Various petitions for extending the time of filing the report were filed and granted. Finally on April 10, 1911, the report was filed. On April 12, 1911, each appellant filed a motion to set aside the report, on the ground, among others, that the county surveyor was disinterested and competent to act as commissioner “and would not have failed to give bond had he been appointed by the court.” The motion was over
Appellants’ motion in arrest of judgment was overruled. This action is here urged as erroneous, because the petition, on its face, fails to show that the lands of petitioners, sought to be drained, do not lie within the corporate limits of any town or city. The objection, if otherwise tenable, might have been presented by demurrer. Section 3 of the drainage act of 1907, provides that “All objections to the petition * * * not made within said ten days shall be deemed waived.” §6142 Burns 1914, supra. Appellants waived their right to a consideration of the question by failure to present it to the trial court within the statutory period. Pittsburgh, etc., R. Co. v. Gregg (1914), ante 42, 102 N. E. 961, and authorities cited.
Appellants remonstrated, among other things, on the grounds that the proposed work will not be sufficient to drain the lands affected; that it is impracticable and will not accomplish the proposed’drainage because the proposed grade for the tile will be lower than the water bed in which it is proposed to lay them; and because the size of the tile proposed is insufficient to drain the lands. The proposed work is intended to drain some low land lying in a valley immediately west of Blue River. The ditch has its outlet in the river and commences at a point more than a half mile west thereof. Its length is approximately 7,000 feet, and at station 67, it is only about 200 feet west of the river. The lower part of the work will be constructed of tile twenty inches in diameter. The ditch has a fall of about fourteen feet in its entire course. At its outlet the bottom of the tile will be practically level with the surface of the water in the river, at low water mark. From stake 55 to stake 67, the bottom of the tile will be lower than the low water surface of the river, at nearest points thereto — in some places nearly two feet below.
There was some evidence to support the decision of the
Note. — Reported in 105 N. E. 231. As to the procedure for the establishment of drains and sewers, see 60 L. R. A. 161. See, also, under (1, 2) 14 Cyc. 1037; (3, 5) 14 Cyc. 1042; (4) 3 Cyc. 383.