145 Ind. 139 | Ind. | 1896
— Appellee filed, in the court below, his petition for the drainage of certain real estate, by straightening and deepening an old open drain and laying tile therein.
Appellants were named as landowners who would be affected by the proposed, work. Afterwards, an amended petition was filed, to which appellants filed a
Appellants filed their remonstrance against the proposed work and for damages. The-cause was tried by the court, and at the request of appellants, the court made a special finding of the facts and stated the conclusions of law thereon, to each of which each appellant excepted. Over appellants’ motion in arrest of judgment, the court rendered judgment that the proposed work be established, etc.
The errors assigned and not waived are:
1. The court erred in sustaining the demurrer to the plea in abatement to the amended petition.
2. The court erred in each of its conclusions of law.
3. The court erred in overruling the motion in arrest of judgment.
The plea in abatement to the amended petition, proceeded upon the theory that this proceeding was under the sections 5649, 5663, R. S. 1894, acts 1893, p. 159, providing for the tiling of public drains. This act requires that the petition for tiling such drains be signed by a majority of the resident landowners along the line and benefited by the tiling of such drain.
The law of 1893, sections 5649, 5663, supra, does not contemplate any substantial change in such drain, except changing the same from an open to a covered drain, while the amended petition is to straighten and deepen an old drain. The amended petition shows that this proceeding was brought under sections 5622, 5630, R. S. 1894. Acts 1885, p. 219; Rogers v. Venis, 137 Ind. 221, and cases cited, p. 224; Sample v. Carroll, 132 Ind. 496, 498. The last named law does not require that the petition be signed by a majority of the resident landowners.
There was no error, therefore', in sustaining appellee’s demurrer to the plea in abatement.
The second conclusion of law is, that appellant Poundstone is entitled to receive $50.00 damages for the destruction of timber, to be paid out of the funds of said ditch.
Counsel for said appellant insist “that before said work could be established that the damages assessed must first be paid or tendered. That the taking of private property to establish a drain is not a taking by the State, but by the individual who fancies that his land will be benefited by such drain.”
This contention is based upon the theory that the coinstruction of a drain is the taking of one man’s property for the use of another.
This court has uniformly held that the taking of private property, authorized by the drainage laws of this State, was for a public and not for a private use. Zigler v. Menges, 121 Ind. 99; Heick v. Voight, 110 Ind. 279, and cases cited; Anderson v. Baker, 98 Ind. 587, and cases cited ; Wishmier v. State, 97 Ind. 160, and cases cited ; Chambers v. Kyle, 67 Ind. 206 ; Tillman v. Kircher, 64 Ind. 104.
The discussion of counsel upon this point is answered fully and completely by this court in the case of Ross v. Davis, 97 Ind. 79, page 83, in which the court says: “It is insisted that the provisions for the construction of drains, made in the statute, are intended for private benefit only. Although the proceedings for
“It is not necessary, in order that the use may be regarded as public, that the whole community or any large portion of it may participate in it. If the drain be of public benefit, the fact that some individuals may be specially benefited above others affected by it will not deprive it of its public character. * * *
“We have no doubt that it is within the power of the legislature to make provision for the construction of such drains, so that the costs, damages, and ex
No damage in excess of benefits were assessed to any of the appellants, and they have no interest in the question whether provision should be made for prepayment of damages to others. See Zigler v. Menges, supra.
In this case, the assessment of benefits to appellant Poundstone is $200.00; the assessment of damages $50.00, leaving his benefits $150.00. So that in any event he cannot complain as long as the benefits exceed the damages, for he is, in fact, and in the contemplation of the statute, paid in benefits, and the other appellants have no interest in the question. Wilson v. Talley, 144 Ind. 74.
It is next urged that it is alleged in the petition that Andrew Caldwell owned two tracts, of forty acres each, and that it is not shown that he was served ■ with notice of the proceeding.
Only one of said forty-acre tracts was assessed with benefits, and the special finding states that said forty acres was the property of the heirs of Andrew Caldwell. Section 5623, E. S. 1894, provides that it is sufficient to give in the petition the name of the owner of each tract affected, as it appears according to the last tax duplicate or record of transfers kept by the county auditor, and it was proper to give the name of the
Besides, neither Andrew Caldwell or his heirs have appealed to this court. No one claiming to be the owner of the real estate alleged in the petition to be tbe property of Andrew Caldwell is here complaining of any action of the court below.
The rule is that appellants can only bring before the court such questions as affect their rights, and not such as affect the rights of others.
The fact that one or more of the landowners was not notified will not vitiate the proceedings as to those who were properly notified. Carr v. Boone, 108 Ind. 241, 244; Grimes v. Coe, 102 Ind. 406 ; Zigler v. Menges, supra; Steel v. Empsom, 142 Ind. 397.
The court had ample authority to allow appellant to file an amended petition, even though the original petition did not state facts sufficient to constitute a cause of action. The court had jurisdiction over the parties to the original petition, and they were not entitled to notice of the amended petition. Appellants
There is no available error in the record.
Judgment affirmed.