51 Ind. App. 418 | Ind. Ct. App. | 1912
— Appellants brought this action to enjoin appellees from constructing a ditch provided for in the plans and specifications for certain public road improvements. A temporary restraining order was issued, and on final hearing said order was made perpetual in part and dissolved in part. The questions presented by the appeal do not require us to set out in detail the verified complaint on which the temporary restraining order was issued and the case tried. It averred facts showing that appellants were the owners of certain described real estate situate in Jennings township, Scott county, Indiana, along the north line of which was located a public highway known as the Glade road; that immediately north of said highway, and running east and west along the same, was a public ditch, known as the Cozart ditch; that a natural watercourse
The petition asked that appellees be restrained from in any manner interfering with said natural watercourse and its free passage into the Cozart ditch, and from in any manner disturbing its banks or diverting its course by digging any ditch on the south side of said new road, and that they be ordered to construct said new road in such a manner
Appellants then moved the court "to so modify its finding and decree * * as to provide that the defendants in ditching and draining said highway shall do it in such a manner as not to divert the flow of the water in the natural watercourse described in the complaint from flowing under said bridge and across said highway.” This motion was overruled. Appellants then filed a motion for a new trial, which was also overruled. The ruling on each of these motions is assigned as error, and presents the questions raised by the appeal.
The facts of the ease as disclosed by the evidence, in so far as they are here material, are as follows: On October 6, 1905, a petition signed by two of the appellants and sixty-three other resident voters and freeholders of Jennings township, Scott county, Indiana, was filed with the board of commissioners of said county, praying for the improvement and building of a certain free gravel road in said township. On November 6, 1905, said petition was duly passed on by the board of commissioners, and said board found that the necessary notice of the pendency of said petition had been given; that it was in due form signed by more than fifty legal voters and resident freeholdex’s of said town
The only grounds of the motion for new trial are the insufficiency of the evidence to sustain the decision of the court, and that such decision is contrary to law.
Appellants have not attacked the validity,of the order of the board of commissioners, but only seek to enjoin its execution. Two of them signed the original petition for the highway in question, and all had ample opportunity to make objection to the proceedings before the board issued its final order. Furthermore, the statute makes provision for an appeal from decisions of county boards in cases of this character, and where no such appeal is taken the action of the board is as conclusive against collateral attack as the judgment of the circuit eourt. §7793 Burns 1908, Acts 1905 p. 521, §123; Rassier v. Grimmer (1892), 130 Ind. 219, 28 N. E. 866, 29 N. E. 918; Ryder v. Horsting (1891), 130 Ind. 104, 29 N. E. 567, 16 L. R. A. 186; Maxwell v. Board, etc. (1889), 119 Ind. 20, 19 N. E. 617, 21 N. E. 453; Brooks v. Morgan, supra; Board, etc., v. Davis (1894), 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515; Grusenmeyer v. City of Logansport (1881), 76 Ind. 549, 557.
The judgment of the court helow gives appellants all to which they were entitled either under the law or the facts, and it is therefore affirmed.
Note. — Reported in 99 N. E. 817. See, also, under (1) 87 Oye. 128. As to collateral attacks upon orders and judgments, see 94 Am. Dec. 766; 29 Am. St. 78.