180 Ind. 553 | Ind. | 1913
Lead Opinion
•Proceeding by appellees for tiling a portion of an open public drain in Howard County, by proceedings before the board of commissioners. On general remonstrance the proceeding was dismissed. On appeal to the circuit court the remonstrance was held insufficient, and such proceedings had that the ditch was established, from which order this appeal is prosecuted. The errors assigned are predicated on exceptions to the conclusions of law on the court’s special finding of facts, and in overruling the motion for a new trial, and the question to be determined is the sufficiency of .the remonstrance.
The petition was signed by four persons: two Kirbys, husband and wife, who owned one tract of land affected as tenants by the entirety, and the husband owned a tract in his individual name; one signer was in fact the township trustee, but signed' as an individual, though he had personally no interest; the fourth person was an individual owner. The persons named in the petition as owners of land were twenty-two in number, including in three instances husbands and wives owning as tenants by the entirety, the two Kirbys being thus included, and in addition civil Clay Township. That is, there were tw.enty-two persons named, six of whom were husbands and wives, and in addition the civil township. Of these individuals three were admittedly nonresidents of Howard County. A fourth person was notified only as a nonresident, as to whom it is claimed that he was in fact a resident, which was a fact disputed on the trial, and he received the notice by mail and made no appearance or objection in the proceedings. Within the twenty days provided by the statute (§6142 Burns 1908, Acts 1907 p. 508) for remonstrating, a remonstrance was filed containing the names of twelve of the persons, individual owners, named in the petition as affected, two being husband and wife.
It is the position of appellants, that husbands and wives, where the real estate is held as tenants by the entirety, can only be counted as one person, and that in case one of the spouses holds other property in his or her individual right, having been counted as one with the spouse, he or she cannot be again counted, or taken into consideration. In view of our conclusions it is unnecessary to determine this question as
It is next urged by appellant that "persons not named in the petition or remonstrance cannot be counted even though they may be affected by the proceeding.” This cannot be granted. Take this case: Mrs. Merrill is the life tenant; three of her children, remaindermen, reside in Howard County; the ditch runs through their land; if an assessment is made against the land, the burden must be borne by her and by them. Hay v. McDaniel (1901), 26 Ind. App. 683, 60 N. E. 729. For the purpose of obtaining jurisdiction to assess the land, it is sufficient to describe the land as it appears to be owned by the last tax duplicate or record of transfers, but that is a matter wholly apart from the actual ownership of the land, and the fair construction of the statute is that not only those who are named in the petition but in addition those "who may be affected by any assessment or damages” (damaged). The object is to enable two-thirds of those who are really affected to express their desires and defeat a proceeding if they so elect. If this were not so, it would be an easy matter in case of numerous persons owning as tenants in common by inheritance, whose lands still stand on the tax duplicate in the name of the ancestor, to defeat their rights, arising from silence, by not naming them in the petition, when silence may be as effective as affirmative remonstrance. It is conceded that they may come in by remonstrance, and are then to be counted, but they may be affected by silence as well as by affirmative, action, for they may be, and in this ease were, named in the report, and brought in by notice. The fact that they may be affirmatively heard, is a concession that they are affected, because they could not otherwise be heard, and -if they choose to sit silent, they may do so, let the result be what it may, but they none the less go to make up the landowners affected.
In this case, conceding that notice to the life tenant in whose name the land was taxed, was sufficient to confer jurisdiction to assess the land, that notice was for that reason binding on the remaindermen as privies in estate and in law, and it would be a strange contradiction to say that while they might remonstrate and be counted, they should not be regarded as assenting by silenee and not be counted, for that purpose. We are quite sure that such construction should not be given.
Whether therefore a husband owning real estate in his individual right, and owning other real estate as tenant by the entirety, both he and the other spouse are to be counted as one, or two persons, affected, or whether in cases of tenancies by the entireties,. both spouses shall be counted as one, or two persons, from the fact of the three Merrills, remaindermen, being affected and residents of the county, and whether Boyd be regarded a resident or a nonresident, the remonstrance was insufficient. Counting husbands and wives as separate owners, named in the petition, and the three Merrills as affected but not named in the petition, there were twenty-six owners named, of these twenty-two were residents of the county, three were nonresidents, not counting Boyd either as a resident or nonresident. Only twelve residents thus counted remonstrated. If we count them with the spouses owning by entireties,
Error is urged in the admission of evidence regarding the residence of Boyd, it being in fact in Howard County, when notice had been given him as a resident of Cass County, upon the ground of estoppel. He is making no complaint of the service, and unless the question of his residence affects appellants in some right, they cannot complain of the service as to him, and it was immaterial in this case, for the reason that if he were still treated as a resident of Cass County, the result would be the same. Error is also urged in the admission of evidence of the title in, and residence of the three Merrills, residents of Howard County. In view of our conclusions as to their being affected parties, and entitled to be counted in determining the remonstrance there was no error in this action. The court did not err in its conclusions of law, or in overruling the motion for a new trial, and the judgment is affirmed.
Rehearing
On Petition for Rehearing.
An ingenious argument is presented by the learned counsel for appellants as to the construction to be given the phrase in the drainage law, respecting the general
The argument is, that petitioners may name whom they please in the petition, and by notifying only those persons, place them alone on their guard, and, Should the silence of persons who do not legally know of the proceeding have the same weight as those who are notified, and actively approving, and the silent voice be as effective as the notified, active voice ? The contention of appellants is, that a remonstrance by two-thirds of those named in the petition is sufficient, irrespective of the number of those to be affected by the assessment, or damaged. That by giving remonstrators the alternative, the best interests of all will be worked out. The theory in this last particular is, that petitioners will know that by naming, and notifying as many as possible, the larger remonstrance will be required, and more publicity given. On the other hand, if the petitioners name in their petition a large number of people who are in fact not interested, this evil would be met by requiring the remonstrance to contain merely two-thirds of those who may in fact be affected by assessment, or damaged. We have put these questions as appellants state them.
Appellants’ argument in the last particular, proves too much. Under that theory, persons through whose lands a ditch may run might not be made parties, might not be benefited, but might be damaged. Yet they are necessary parties to authorize the construction of the drain through their lands, and on appel
The statute conferring two-thirds remonstrance on per
The history of the laws, and the possibility under former acts, prior to 1903, made well and publicly known the fact of the institution of proceedings for drains through the then
It is urged that we were in error in the declaration that notice to a life tenant in whose name the property appears on the tax duplicate or record of transfer, is, under the drainage law, binding on remaindermen as privies in estate, and in law. The point should perhaps be somewhat more elaborated. The statute provides that notice to the party in whose name the property appears on the tax duplicate or transfer record, shall be sufficient to give jurisdiction to assess the land. It has been held that the life tenant and remaindermen must contribute to any such assessment made on their iand, in proportion to their interests, or equitably. Hay v. McDaniel (1901), 26 Ind. App. 683, 60 N. E. 729. The remaindermen are necessarily privies, that is, have mutual and successive relationship to the property itself, and they are privies in estate to the life tenant, because they succeed to the rights of the life tenant, that is, come into the same rights the life tenant now
The petition for a rehearing is denied.