180 Ind. 33 | Ind. | 1913
Appellees filed a petition for the construction of a drain. Appellant remonstrated against the report of the drainage commissioners, on the grounds, among others, that certain tracts of his land, assessed as benefited, would be greatly damaged by overflow water, and that four tracts, assessed as benefited in the respective sums of $40, $60, $200 and $200, would derive no benefits from the proposed work. The court found against appellant on the question of damages, and modified the assessment of benefits so as to leave the four tracts assessed respectively at $40, $60, $100 and $50.
The only questions presented here, are based on the alleged insufficiency of the evidence, in fact and law, to
Appellant claims there is no evidence to support the court’s finding on the question of damages. In this, he is in error. While appellant, and others, testified that his land would be overflowed and greatly damaged by the increased volume of water brought to the mouth of the proposed drain, which, in their opinions, could not be carried by Wolf Creek Ditch, on the other hand, the county surveyor (one of the commissioners), who was a witness in behalf of both appellant and petitioners, testified that Wolf Creek Ditch, below the outlet of the proposed system, has a carrying capacity of fifty per cent more than the proposed ditch has above its outlet; that below the .terminus of the new drain, Wolf Creek Ditch has a fall so heavy that the water riffles in flowing; that while there might be some overflow on appellant’s lands, in spring freshets, the same condition now exists, and appellant’s lands would not by the construction of the drain, be subjected to any additional overflow that would cause damage to his land; that at the present time the overflow of the entire drainage area passes over appellant’s lands in controversy. Appellant testified that there are certain obstructions in Wolf Creek Ditch, on his land. Thomas J. Wilson, one of the commissioners, testified that when they
Appellant contends there was no evidence to support the court’s finding in relation to benefits. Appellant, and other witnesses in his behalf, after stating certain facts, testified that in their opinions, the values of the tracts of land in controversy would not be greater, and, in some instances would be less, after the construction of the proposed drain, than at present. These witnesses stated their opinions of the values of the lands now, and what they would be after the construction of the proposed drain. Only one of the witnesses, in behalf of the petitioners, (the surveyor) gave opinion evidence in relation to amount of benefits, and that with reference to one tract only. He testified that one forty-acre tract would be benefited in the sum of $200. Another of the commissioners, testifying for petitioners, said appellant’s lands would be benefited by the proposed drainage, but gave no opinion as to amount of benefits. If, in determining the questions of benefits, the court was limited to a consideration of the opinion evidence, it might be said that as to three of the tracts, no evidence was given warranting assessments of more than nominal benefits. But the court was not so limited. There was evidence of the following facts: the entire area of 1,600 acres now drains through appellant’s lands; there are places, of definite areas, on appellant’s lands, now unfit for cultivation, because too wet; the land is now worth about $100 per acre; is suitable, where properly drained, for producing corn, wheat and oats, of stated average yields per
Appellant has assigned as error that the decision of the trial court is contrary to the weight of the evidence, and requests this court to weigh the evidence, under the provisions of §8 of the act of 1903 (Acts 1903 p. 338, §698 Bums 1908). This court has repeatedly held that the above statute does not require the weighing, on appeal, of conflicting oral evidence. Seybold v. Rehwald (1912), 177 Ind. 301, 95 N. E. 235; Parkison v. Thompson (1905), 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677; Ray v. Baker (1905), 165 Ind. 74, 74 N. E. 619; Karges Furniture Co. v. Amalgamated, etc., Union (1905), 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 829.
There is no reversible error. Judgment affirmed.