189 Ind. 14 | Ind. | 1919
This is an appeal from a final order made by the Superior Court of Delaware county in a proceeding for the repair of a drain known as “Schroyer ditch No. 110.” This ditch is located entirely within’the county of Delaware, and was originally located and constructed under an order of the board of commissioners of that county. The Schroyer
Tbe petition filed before tbe board of commissioners described tbe Scbroyer ditcb as originally constructed, and alleged that said ditcb was out of repair, being filled at places with dirt and rubbish, and that said ditcb as originally constructed never bad been, and was not at the time tbe petition was filed, of sufficient capacity to properly accomplish tbe drainage for wbicb it was designed and intended. It further alleged that said ditch could be made sufficient to perform tbe drainage for wbicb it was designed and intended by making tbe same wider and deeper throughout its entire length, and by extending tbe length of said drain a proper distance to procure tbe proper fall and proper outlet, and by changing tbe course thereof, and by tiling and covering" said drain for a distance of sixty rods from its source.
While the statute under consideration designates the work thereby authorized as repair of a ditch or drain, the work actually authorized by the provisions of the act constitutes a reconstruction of the former ditch with such changes and extensions as will make it efficient to accomplish the' drainage designed and intended by the original drain, Prior to the enactment of this statute it was held that the same result would be reached by a petition for a new drain following the course of an existing established ditch. Meranda v. Spurlin (1885), 100 Ind. 380; Rogers v. Venis (1894), 137 Ind. 221, 36 N. E. 841; Sample v. Carroll (1892), 132 Ind. 496, 32 N. E. 220.
The special finding shows that, by extending the Schroyer ditch down White river for the purpose of providing an outlet, the improvement passes the outlet of Prairie creek which drains a large area of land located on the south side of White river, while the lands drained by the Schroyer ditch are all located on the north side of the river. The finding shows that the proposed improvement will furnish a better outlet for Prairie creek and will incidentally benefit the lands drained thereby, none of which were drained or affected by the original Schroyer ditch; but the court further finds that the proposed improvement below the mouth of Prairie creek was not made deeper or extended in order to accommodate water flowing from Prairie creek, and that the entire work of extension is necessary in order to procure sufficient outlet for Schroyer ditch No. 110, so as to make it sufficient to drain the territory for which it was originally designed and intended. This finding does not show that the extension down White river for the purpose of obtaining an outlet was not necessary in order to make the original ditch efficient to accomplish the drainage for which it was originally intended, but it does affirmatively show the contrary.
As heretofore stated, the remonstrance filed before the board was refiled to the amended petition in the superior court, and after a hearing the same was overruled. A motion for a new trial on the issues presented by the remonstrance was filed and overruled, and this action of the trial court is assigned as error.
A remonstrance filed under this provision of the statute cannot prevail against the petition, unless it is made to appear to the court that the remonstrance
The petition in this case named 246 persons as the owners of lands which would be affected by the proposed improvement. There was proof that the remonstrance bore the names of 212 persons whose lands were affected, many of whom were not named in the petition, and the evidence also disclosed that there were many landowners, resident in the county, whose lands would be affected by the proposed improvement whose names did not appear either on the remonstrance or in the petition. There being no evidence to show the number of such persons, the court could not determine the total number of landowners resident in the county whose lands would be affected by the proposed improvement. The remonstrance was properly overruled because the evidence failed to show that it was signed by the required number of qualified landowners.
The court has examined the other questions presented by the record, and it is of the opinion that what has been said is sufficient to indicate that no reversible error was committed by the other rulings of which complaint is made and which are not specifically discussed.
Judgment affirmed.