175 Ind. 227 | Ind. | 1910
Appellees petitioned the Board of Commissioners of the County of Howard to tile a certain open drain, known as the William G. Cook ditch and its tributaries. The matter was duly referred to the drainage commissioners, who reported in favor of the proposed work, and provided for the widening and deepening of the ditch, into which the tile was to enter, for a distance of 3,800 feet from the outlet. The owners of lands through which the enlarged outlet passed were not named in the report, and no assessment of benefits or damages was made against such lands. Appellants appeared before the board in due time, and filed remonstrances against the proposed work, alleging (1) that their lands would not be benefited to the extent of the assessments made, (2) that the total cost would exceed the aggregate benefits, (3) that the work would not be of public utility, and (4) would not be sufficient to drain the lands to be affected. These issues were tried before the board and decided in favor of appellees, and the work was ordered constructed. Appellants appealed to the circuit court, where, upon retrial, it developed for the first time that the owners of lands through which the outlet to be enlarged would pass had not been made parties to the proceeding. Appellants thereupon moved that the cause be remanded to the board of commissioners, but the court overruled this motion, continued the hearing until September 15, 1909, ordered said landowners, by name, to be made parties, directed the drainage commissioners to meet at a designated time and place and amend their report so as to include said parties and their lands to be affected, and required the petitioners to cause ten days’ notice of the hearing of such amended report to be given to each of the new parties, all of which was accordingly done. The new parties named then appeared in the circuit court and filed a waiver of service of such notice, and of all right to remonstrate against the drain, and consented that the drain might be ordered constructed as proposed in the report of the drainage commissioners. The court thereupon made
It is alleged that appellees’ petition does not state facts sufficient to constitute a cause of action, and that the court below erred in overruling appellants’ motions to remand, for a new trial, in arrest, and to modify the judgment.
The petition for the proposed improvement alleged that the petitioners were owners of real estate in Howard county affected and drained by the system of drainage theretofore constructed under the laws of the State, and known as the William G. Cook and the Amos W. Butler ditches, and all their tributaries, and that the Butler ditch is a tributary of the Cook ditch; that, in the opinion of the petitioners, a specified part of said drainage system in the county can be more economically kept in repair and be rendered more efficient by tiling and covering, and the public health be thereby improved and certain public highways benefited; that the costs, damages and expenses will be less than the benefits resulting to the owners of land likely to be benefited thereby; that the proposed improvement will affect certain lands in the county, particularly described; that the petition is filed under the laws of the State, providing for the tiling, change, improvement or extension of any work of drainage constructed under the laws, or any former laws of the State, and that the drainage sought to be improved was originally constructed under drainage laws of the State.
Appellants filed a verified motion for an arrest of judgment, because (1) it did not appear from the petition that either of the ditches to be improved had been originally established
Members of boards of county commissioners are usually not lawyers, and strict rules of pleading are not ordinarily required in proceedings before these tribunals. The statute governing this proceeding requires that “ the form and contents of such petition and other provisions in relation thereto shall, so far as applicable, be the same as provided in section
Proceedings for the establishment of public highways are, in a general way, similar to those for the establishment of public drains by boards of commissioners. It has been expressly held that a petition to vacate a public highway need not allege the jurisdictional fact that it is signed by twelve freeholders of the county, six of whom reside in the immediate neighborhood of the highway proposed to be vacated, although such fact must be proved. Aetna Life Ins. Co. v. Jones (1909), 173 Ind. 149.
It is provided that a board of commissioners shall not act upon a petition to establish, vacate or change a public highway, without first requiring a cost bond, if an adverse report has previously been returned upon the same matter. In reply to a contention, similar to appellants’, that a cost bond was jurisdictional in such a case, and the proceeding void without it, this court said in the case of McKaig v. Jordan (1909), 172 Ind. 84: “Boards of commissioners are given general jurisdiction over the subject of laying out and establishing highways, and are authorized to take jurisdiction of a particular case upon the filing of a prescribed petition after the giving of a specified notice. A board, doubtless, might do so, but is not required to take judicial notice that the route described in a pending petition is the same as that contained in a former proceeding and found not to be of public utility. The identity of the two routes should ordinarily be brought forward by some interested party to stay the pending proceeding, since the fact will not be apparent in the particular case, but must be shown by evidence dehors the record. If a party desires to challenge the jurisdiction of a judicial tribunal over his person, or over the subject-
In the case before us, no fact affirmatively appears from the record indicating lack of jurisdiction in the board over the proceeding. It is our conclusion that a declaration in the petition, that the ditch to be improved was established and constructed by order of the board, is not indispensable, and a petition will not be held insufficient for lack of such averment when challenged for the first time in this court or by motion in arrest of judgment. It follows that the court did not err in overruling appellants’ motion in arrest.
The remonstrances denied the public utility of the pro
No harmful error is made to appear, and the judgment is accordingly affirmed.