No. 11,598 | Ind. | Jun 27, 1885
Lead Opinion
The appellees, proceeding under the act of April 8th, 1881, petitioned for the establishment of a ditch, and their petition was resisted by the appellants.
The point first made is that the circuit court had no jurisdiction of the subject-matter, and that its proceedings are-void. One reason stated in support of this contention is that the petition seeks to deepen and straighten a river, and that the circuit court has no jurisdiction in such matters. The-statute supplies a full answer to this contention, for it expressly provides that natural streams may be straightened, widened and deepened. R. S. 1881, section 4275. The Legislature-has power -to enact such a statute. Gould Waters, section 248.
Another reason urged in support of this position is that the-act of April 8th, 1881, is repealed by the act of April 21st, 1881. This point has heretofore been decided against the appellants, and we have no doubt as to the soundness of those decisions; indeed, the language of the latter statute clearly shows that there was no repeal. Shaw v. State, etc., 97 Ind. 23" court="Ind." date_filed="1884-09-16" href="https://app.midpage.ai/document/shaw-v-state-ex-rel-whitmore-7047230?utm_source=webapp" opinion_id="7047230">97 Ind. 23; Crist v. State, ex rel., 97 Ind. 389" court="Ind." date_filed="1884-09-27" href="https://app.midpage.ai/document/crist-v-state-ex-rel-whitmore-7047316?utm_source=webapp" opinion_id="7047316">97 Ind. 389; Buchanan v. Rader, 97 Ind. 605" court="Ind." date_filed="1884-10-09" href="https://app.midpage.ai/document/buchanan-v-rader-7047360?utm_source=webapp" opinion_id="7047360">97 Ind. 605; Meranda v. Spurlin, 100 Ind. 380" court="Ind." date_filed="1885-02-19" href="https://app.midpage.ai/document/meranda-v-spurlin-7047672?utm_source=webapp" opinion_id="7047672">100 Ind. 380.
It is contended that the circuit court did not select drainage commissioners from six persons nominated by the township trustees, as required by section 4273, and that for thi% reason the proceedings are void. We do not think this question is presented by the record. The motion to strike out the report on the ground now urged was made at the November term, 1883. -No time was then asked or allowed in which to file a bill of exceptions, and none was filed until February, 1885. This Avas too late to save the question ; leave to file a bill should have been asked and obtained during the term. Where persons assume to act under the authority of the court, Avhere there is an order appointing them, and where their acts are approved by the court, it must appear'by a proper bill of exceptions that timely objection to-their acting was made by the remonstrants; otherwise the-rulings of the trial court Avill be respected.
The court had authority, to extend the time of filing the report of the commissioners. It is a familiar rule that where a judicial tribunal has a general power to designate a time within which an act shall be done, it may extend the time. Sucb a power is regarded as a discretionary one, and the exercise of it by the court will not be interfered with unless there has been an abuse of discretion. If the power is limited to a certain time, then, of course, a different rule prevails.
The drainage laws have so often been declared constitutional that the question can no longer be deemed an open one.
It is contended that the court erred in refusing appellants a trial by jury. The power of the Legislature to provide that in special proceedings the trial shall be by the court, and not by jury, is fully established by the decisions upon the subject; there is, indeed, no contrariety of opinion. Anderson v. Caldwell, 91.Ind. 451 (46 Am. R. 613); Indianapolis, etc., G. R. Co. v. Christian, 93 Ind. 360" court="Ind." date_filed="1884-01-30" href="https://app.midpage.ai/document/indianapolis--cumberland-gravel-road-co-v-christian-7046773?utm_source=webapp" opinion_id="7046773">93 Ind. 360; Boss v. Davis, 97 Ind. 79" court="Ind." date_filed="1884-05-16" href="https://app.midpage.ai/document/ross-v-davis-7047242?utm_source=webapp" opinion_id="7047242">97 Ind. 79. We have no doubt as to the constitutional power of the Legislature to provide for the trial of drainage cases by the court.
In support of the contention of the right to a trial by jury appellants assert that the statute does not deny it upon all causes of remonstrance, and that, conceding the statute to be constitutional, they were nevertheless entitled to a jury. We can not assent to this' doctrine. The statute expressly says that “ Remonstrances founded on the second, third, fourth, fifth, sixth, seventh, eighth, or ninth causes of remonstrance shall be tried by the court without a jury,” and of the other cause, the first, it says: “ If the court be of the opinion that the first cause of the remonstrance above enumerated exists, it shall direct the commissioners to amend and perfect their
The law is well settled that the statute in force at the time of the trial governs as to the procedure, and as the act of 1883 was in force when this case was tried, it governed as to the procedure on the trial.
The difficult question in the case is as to the rule which .shall govern in the assessment of benefits. The language of the statute is very broad; it is this: “ They (the commissioners) shall proceed and definitely determine the best and cheapest method of drainage, the termini and route, location and character of the proposed method, and fix the same by metes and bounds, courses and distances, and description, estimate the cost thereof,, assess the benefits or injury, as the case may be, to each separate tract of land affected thereby, and to easements therein held by railway or other corporations.” This language is very comprehensive and includes every appreciable benefit of a private character to the landowner, but, broad as it is, we do not think that it can be construed to extend to the general benefits which the landowner receives as one of the public. Counsel have not referred to any authorities upon this subject, and the only decisions we have been able to find in the course of our search are those made in cases where benefits and damages for the opening of highways were claimed. Judge Dillon, in discussing this general subject, says: “And here, most usually, arises the difficult inquiry, What benefits and'what injuries are proper to be regarded as affecting the question of damages? Now, benefits and injuries are of two kinds: I. General or public, being such as are not peculiar to the particular proprietor, part of whose property is taken, but those benefits in which he shares and those injuries which he sus
We think that the rule which prevails in analogous cases should be adopted in these drainage cases, and that the landowner should not be assessed with general benefits which accrue to him as a member of the community.
As the land-owner is not to be charged with general benefits, but is to be assessed with all special benefits, it becomes necessary to inquire and determine what are special benefits. Whatever gives an additional value to the particular parcel of land is a special and not a general benefit, and it may be a special benefit, although not an immediate one. Suppose, for illustration, that the person assessed owns a tract of land situated on a knoll and well drained in every part, but that on all sides of it are great ponds rendering access difficult, and isolating it from highways, a drainage of the ponds would benefit the land-owner, although it might not carry any water at all immediately from his land, and such a benefit would be a special and not a general one. In estimating
Where the construction of a large ditch enables property owners to carry their lateral ditches into it, and to thus secure good drainage without encroaching upon the rights of others, there is a special benefit. This results from the rule that one land-owner has no right to collect water in a body and pour it upon the land of another. City of Evansville v. Decker, 84 Ind. 325" court="Ind." date_filed="1882-05-15" href="https://app.midpage.ai/document/city-of-evansville-v-decker-7045520?utm_source=webapp" opinion_id="7045520">84 Ind. 325 (43 Am. R. 46), vide opinion 328, 329; Weis v. City of Madison, 75 Ind. 241" court="Ind." date_filed="1881-05-15" href="https://app.midpage.ai/document/weis-v-city-of-madison-7044230?utm_source=webapp" opinion_id="7044230">75 Ind. 241 (39 Am. R. 135), vide pp. 251, 248, 257; Gould Waters, sections 271, 272, 536. Where a land-owner obtains an outlet for lateral ditches constructed for the drainage of his land, by means of a large ditch, or by reason of the widening, deepening, and straightening of a natural stream, he receives a special benefit, for he is thus provided with means of drainage without injury to others. The evidence shows the appellants to have received this and other special benefits, and we can not disturb the finding of the trial court upon the evidence.
It may possibly be true that the appellants, under the existing condition of affairs, could lead their lateral ditches into the swamps and ponds without appreciable injury to their
In most cases the question whether there is or is not a special benefit is one of fact to be determined from the evidence in the particular case. This is so in the present instance, and under the settled rule we can not disturb the finding of the court upon the evidence.
Judgment affirmed.
Rehearing
On Petition foe a Rehearing.
This case has been fully argued both orally and in elaborate briefs, but we are again asked to review the rulings'of the trial court and our own.
It is now insisted that we did not decide one of the questions argued. We can not agree with counsel upon this point. We did decide, as many cases in our own and in other courts required us to do, that the drainage law was constitutional, and this necessarily included all phases of the question. We have, however, yielded to the earnest appeal of counsel, and now expressly discuss the phase of the question which they seem to think was left undecided.
The position assumed by counsel in their discussion of the case, as we understand their argument, is this: The statute of April 8th, 1881, denies a right to a trial by jury, while that of April 21st, 1881, confers that right, and the former statute is, therefore, in conflict with the provision of the Constitution which reads thus: “ The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally
‘The act of April 8th, 1881, provides for proceedings in the circuit court; while that of April 21st, 1881, provides for proceedings before the board of commissioners. There are, therefore, two distinct courts and two distinct proceedings designated and provided for in the two statutes. Parties in the-same court have the same rights, but there is a difference in the procedure of the two courts. The privileges are granted upon the same terms, that is, the rules prescribed for the one court apply to all parties who come into that court. It has always been the legislative practice in this State to prescribe different methods of procedure for different courts. No one has ever supposed that because one method of procedure is provided for the circuit court, and another for the board of commissioners, the Constitution has been violated. We have always had different rules of procedure for the circuit court and for the courts of the justices of the peace, and no-one has ever thought of questioning the validity of the statutes prescribing the modes of procedure for those courts.. It is perfectly clear that prescribing different methods of procedure for different tribunals is not denying to one class of citizens rights conferred upon another class. Citizens litigating in different courts ai’e not upon the same terms, for they are in different tribunals governed by different systems of procedure.
There is no discrimination between different classes of citizens, nor, indeed, is there anything bearing the faintest resemblance to a discrimination. There is a discrimination as to methods of procedure in different tribunals, but none between citizens. Privileges and immunities are not granted to one class and denied to another. The distinction is between judicial tribunals, not between citizens. If we hold the act of April 21st, 1881, unconstitutional, then we must hold that there can be one judicial tribunal only for the trial
If we did entertain doubt as to the constitutionality of the statute, we should still be bound to sustain it, for it has been decided time and again that a statute will be upheld unless, its unconstitutionality is so plain that no doubt can be entertained.
"We have many cases in our own reports, and there are many in the reports of other States, holding that different rules of pleading and of practice may be prescribed for different courts* There are, indeed, scores of cases holding that different rules.' may be prescribed for the trial of different classes of cases in the same court; as, for instance, chancery and common law cases, probate cases and ordinary civil actions. These statutes do not, it is quite clear, confer upon one class of citizens privileges and immunities that are denied to other classes; they do no more than prescribe different methods of procedure for different 'tribunals and different classes of actions. For this plain reason no one, until this late day, has ever thought of assailing their validity.
We do not care to add to what was said in the former opinion upon the question of the assessment of benefits, further than to examine some authorities to which our attention has. been called by the counsel for the appellees, and to set down a thought or two which they suggest. These authorities carry the doctrine farther than we deemed it necessary to do. Judge Cooley maintains that “ the only safe and practicable course, and the one which will do equal justice to all parties, is to-consider what will be the influence of the proposed improve
It is apparent, therefore, that there may be a benefit to a tract of land although its drainage facilities may not be increased, but we need not elaborate this point, for we gave it consideration in our former opinion. The statute does not, as appellants unwarrantably assume, confine the assessment to the single particular of an increase in the drainage facilities, for the statute does not restrict the assessment of benefits or of damages to any one kind of benefit or injury. It is clear that land might be injured by a ditch, and yet its drainage facilities be not impaired; on the other hand, as was shown in our former opinion, land might be materially benefited although its drainage facilities may not be directly increased. But, in this instance, there was evidence tending to show that the proposed improvement would benefit the lands of all the appellants by affording better drainage.
Petition overruled.