72 Ind. 499 | Ind. | 1880
— This was an appeal to the circuit court of Henry county, by William Hume, the appellant also in this court, as the owner in fee simple of certain parcels of real estate, particularly described in said county, from certain assessments of benefits, assessed and charged against the said parcels of real estate, on account of the construction of a certain ditch or drain by the appellee. On the trial of the matters arising on said appeal, by a jury in the circuit court, a verdict was returned for the appellee, in effect affirming the assessments appealed from. The appellant’s motion for a new trial having been overruled, and his exception entered to the ruling, the court rendered judgment on the verdict.
In this court the appellant has assigned as errors the following decisions of the circuit court:
1. In overruling his motion for a new trial;
2. In not reversing the assessments on the papers before the court, and in affirming said assessments; and,
3. In rendering judgment against him for the appellee’s costs.
On the trial of the cause, in support of the eighth and ninth “specifications of the grounds of complaint,” the appellant offered to prove, by different witnesses and other evidence, that a majority of the resident land-owners of
The appellee was a corporation, organized under the provisions of the act of March 10th, 1873, “to authorize and encourage the construction of levees, dikes, drains and ditches, and the reclamation of wet and overflowed lands, by incorporated associations,” etc. 1 R. S, 1876, p. 418. It was incorporated for the purpose of constructing a drain •or ditch wholly within the limits of Henry county. In section 13 of said act it is provided that the board of directors of such a corporation may apply to the board of commissioners of the county in which the proposed work extended, and shall present to said board of commissioners a petition, signed by a majority of the resident land-owners, including members of the corporation, of the county, interested in the proposed work, praying for the appointment of appraisers ; and, on proof that a majority of such land-owners are petitioners therefor, it shall be. the duty of the board of county commissioners to appoint in such county three appraisers, not members of the association, or in any way interested in the proposed work, to appraise the benefits and injuries which will result from the proposed work to the lands in such county affected thereby. 1 R. S. 1876, p. 420.
The assessment of benefits and injuries was recorded on the 22d day of June, 1877, in the recorder’s office of Henry county, and on the 11th day of July, 1877, the appellant, who was not a member of the association, took this appeal from the assessments of benefits to his real estate to the court below.
In section 21 of said act, among other provisions relating to appeals from such assessments, is the following: ‘ ‘If the party thus appealing is not a member of the association, he may insist in such appeal upon any legal objection to the assessment, or any part of it.” 1 R. S. 1876, p. 424. In commenting on this provision of the statute, the appellant’s counsel says: “Huméis not a member of the association. The fact that the company has not procured the requisite number of land-owners to sign the petition, and that the board of commissioners, by reason of that fact, had no jurisdiction in the premises, is certainly a legal objection to the assessment.”
We can not construe or interpret the statutory provision
By the express terms of section 13 of the ditching act of March 10th, 1873, the board of commissioners of Henry
Applying the doctrine of these cases to the question under consideration, in the case at bar, we are led to the conclusion, and so decide, that the court below did not err in excluding from the jury the evidence offered by the appellant, for the purpose of proving that a majority of the resident land-owners, interested in the proposed work of the appellee, had not signed the petition to the board of commissioners of Henry county, for the appointment of the appraisers who made the assessments appealed from.
Some minor objections to the proceedings on the trial have been pointed out by the appellant’s counsel, but they have not been discussed or pressed with confidence or earnestness by counsel in his able' and exhaustive brief of
We find no error in the record.
The judgment is affirmed, at the appellant’s costs.