30 Ind. 263 | Ind. | 1868
Suit by tbe Keen’s Creek Draining Company against Large, to enforce the payment of an assessment of benefits to certain lands. The company recovered, and Lai’ge appeals. The complaint was demurred to, because it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. This ruling is assigned for error. One objection urged to the complaint is, that it contains no allegation that it had become necessary that the association should order the payment of any portion of the assessment made 'by the appraisers. The company was organized for the construction of three several ditches, or drains, and the complaint shows that the board of directors ordered the payment of “thirty per cent, of the assessed value of benefits to the lands affected by tbe middle and north ditches.” The complaint docs not in terms state the use for which the money was required, but wo think it evident from the whole complaint that it was required for the construction of the drains referred to in the order.
• It is also objected to the complaint that the assessment returned by the appraisers, which is made a part of the complaint, was not verified as the statute requires. By the affidavit appended to the appraisement, or assessment, the appraisers swear that “the foregoing appraisement is correct to the best of our judgment.” The affidavit required by the statute is, that “ the same is in all respects a true assessment, to the best of their judgment and belief.” 1 G-. & II. 804, see. 12.
The affidavit made by tlie appraisers is not precisely in
Another objection is, that the complaint docs not show that the proposed drains were ever located or established; nor does it describe their beginnings, courses, or termini. This objection is well taken.
Under the statute, the defendant, not being a member of the corporation, may deny that the proposed drain is of public utility, or of private benefit to him; and to enable him to make a proper issue on the subject, the complaint should at least give'the commencement, course, and terminus of the drain. West v. The Bullskin Prairie Ditching Co. 19 Ind. 458. Here the complaint shows nothing in reference to them, except that they are in "White county.
The seventh paragraph of the answer alleges that “ the plaintiff appropriated his (defendant’s) land for the construction of said ditch, but did not proceed in the manner required by law for the assessment of like damages in case of the construction of railroads, canals, and other similar works.” Various provisions of the statute in reference to the appropriation of lands for the way of railroads and other public works, and the assessment of damages therefor, are then set out; and the paragraph concludes by averring that the plaintiff’ had not complied with any of the provisions of the statute so set out, wherefore it was not authorized to construct the proposed drains. The coui’t, at first, overruled a demurrer to this paragraph; and the plaintiff replied that the drain was constructed through the defendant’s land by his leave and license. A demurrer was filed to the reply, and the court,' upon a reconsideration of the question, sustained the demurrer to that paragraph of the answer. This ruling is also complained of. Perhaps, as the complaint was defective, the demurrer to the answer should have been overruled, on the principle that a bad answer is sufficient to a bad complaint. But if the complaint had been good, the answer would clearly have been bad. The question of the right of way has no connection with
The judgment is reversed, with costs, and the cause remanded, with leave to both parties to amend their pleadings.