170 Ind. 178 | Ind. | 1908
On December 24, 1904, certain landowners of Hancock county, Indiana, filed their petition in the circuit court of said county, under §5623 Burns 1901, as amended by the act approved March 10, 1903 (Acts 1903, p. 504, §1), for the purpose of establishing a public drain, pursuant to the provisions of the statute which is known as the “circuit court drainage act,” the above section being a part thereof. This section in part is as follows: “Whenever any owner or owners of any separate and distinct tract or tracts of land-lying outside the corporate limits of any city or town in this State which would be benefited by drainage and which cannot be accomplished without extraordinary labor and expense, as determined by the court: Provided, also, that where such drain passes through the corporate limits of such city or town, the same shall be located in, upon and along the streets or alleys thereof whenever the same may be practicable, without affecting other lands, shall desire such drainage, or which cannot be accomplished in the best and cheapest manner without passing through the. corporate limits of such city or town, such owner or owners may apply for such drainage by petition to circuit court or superior court of the county in which the lands of the peti
The petition for the drainage in question appears to be in the ordinary form for a drain not passing through the corporate limits of a city or town. In fact, it contains no allegations disclosing that the drain will pass through the limits of any city or town. It does; however, state that the purpose of the drain is for the deepening, straightening and draining of the channel of Brandywine creek by the use of a dredge, and describes the route as following in and near the main channel of said creek through certain named sections in Hancock county. While not expressly stated in the petition, nevertheless the fact is that the proposed drain, if established, will run for the distance of one-half mile into and through the corporate limits of the city of Greenfield, the county seat of Hancock county. At the time this petition was filed the names of ten persons, as petitioners, were signed thereto. Five of these were George V. Lewark, Henry Gates, A. W. Shule, Joseph B. Leakey and James A. Samuels. On April 4, 1905, it appears that notice of the pendency of this petition had not been given, consequently notices were ordered issued for June 1, 1905. _ Before the completion of the notice so ordered, and prior to the day fixed for docketing the cause, each of the aforesaid five petitioners presented his application to the Hancock . Circuit Court to dismiss said petition as to himself, and accordingly the court dismissed said petition as to each of said parties, subject to the adjustment of costs. The joint application of Lewark and Gates was made and sustained on May 9, 1905, that of Shule on May 18, 1905, and of Leakey and Samuels on May 19. It appears that these five persons were the only petitioners for said ditch who owned any real estate
The special findings are somewhat lengthy, and in some respects contain matters of an evidentiary character, and others that were not proper to be embraced therein. We set out such of the facts as are material to the question involved. Counsel for appellants virtually concede that the principal point in the appeal is whether the tracts of real estate owned by the petitioners and described in the petition are situated within the limits of the city of Greenfield. The facts as found by the lower court and set out in the special findings fully support the answers filed by appellees, and show that appellants, under the provisions of the statute, were not competent petitioners, for the reason that neither of them was the owner of any tract or tracts of land situated outside the limits of the city of Greenfield. The following facts are stated in the findings: “ (18) The city of Greenfield, in Hancock county, is a duly incorporated city, and has been since 1876. The stream known as Brandywine creek has its course through the corporate limits of said city for a distance of one-half mile. Its course through said, city is represented on the map, annexed to this finding, by the line N, V, U, N. The course of the drain petitioned for in this cause runs through the corporate limits of said city for a distance of one-half mile, and the ditch petitioned for would, if established and constructed, pass through the corporate limits of said city for said .distance. (19) No petition has ever been filed in this cause which avers or shows that the route of the ditch petitioned for in this cause would have passed through the. corporate limits of said city or of any town or city. Neither has any petition been filed in this cause-which avers that the drainage desired to be ef
No reversible error being presented by the record, the judgment is affirmed.