156 Ind. 687 | Ind. | 1901
This was a proceeding on the petition of appellees before the board of commissioners of the county of St. Joseph to establish a public ditch, under and in pur:
■ The errors presented and discussed by counsel for appellant relate to the rulings of the trial court in sustaining the motion of appellees for judgment upon the petition and the reports of the viewers and reviewers, and also in denying appellant the right, which she claimed, to have a hearing
Appellees’ counsel attempt to parry the force of appellant’s contention in respect to the alleged errors of the court, upon the ground that the petition and reports of the viewers and reviewers made a prima facie case in favor of the establishment of the proposed drain, and inasmuch as appellant had failed to remonstrate against the report of the. reviewers, her remonstrance against the report of the first viewers raised.no issue for trial or determination in the circuit court. They seek to. sustain their. insistence in this respect upon the authority of Metty v. Marsh, 124 Ind. 18. That case, however, lends no support to their contention. In the Metty case none of the appellants remonstrated before the board of commissioners, but offered to do so for the first time on appeal in the circuit court, The holding in that case, under the circumstances, was to. the effect that where a landowner affected by the ditch had failed to file a remonstrance before the board of commissioners, he was not entitled to file it. for the first time on appeal in, the circuit court, and, further, that .the circuit court, under such circumstances, was justified. in refusing to' permit the appellants in. that case to introduce evidence to sustain certain objections which they sought to urge, against, the construction of the proposed ditch. ;
, In the case at,bar, however, appellant complied,with the requirements of .the statute, and appeared before the b.o^rd of commissioners at the proper time and filed her remonstrance, whereby,.:as we have seen, she challenged the,report and finding of the viewers in respect to the public utility of the proposed improvement, as.well as the question' in regard .to the .benefits and damages as determined by the viewers. She also, as it appears, .filed the requisite cost bond,, and. thereupon, under the plain provisions of §56.65 Burns' ,1894, the board appointed reviewers to whom the matters and questions in issue were submitted. The record
In Trittipo v. Beaver, supra, the various decisions of this court, relating to the practice or procedure in a drainage proceeding before the board of county commissioners on appeal to the circuit court, were fully reviewed and considered, and therein it was held that upon appeal the cause stands in like manner as any other adversary proceeding; that the petition and the reports of the viewers and reviewers must be considered and taken as the plaintiffs’ complaint, and the remonstrance, if any, as the defendants’ answer, and that only such material facts as are not controverted by the remonstrance stand admitted as true.
It is manifest, therefore, that the trial court in the case at bar erred in awarding a judgment in favor of the petitioners declaring the ditch established upon-the petition and reports of the viewers and reviewers alone, when the question