170 Ind. 461 | Ind. | 1908
Pending the construction of a drain, under the drainage act of 1905 (Acts 1905, p. 456, §§5622-5635 Burns 1905), known as the “Hill ditch,” which work was referred to the county surveyor as constructing superintendent on March 19, 1906, the appellant, on April 24, 1906, filed, under section eight of said act (§5629, supra), her petition supplemental to the proceeding in the Hill ditch, praying for the construction of an additional arm or branch to said Hill ditch, and describing therein the lands and owners thereof who probably would be affected by said additional arm. The drainage, commissioners who qualified and acted in the original proceeding, under the orders of the court, on September 15, 1906, after view, filed their preliminary report in which they gave the names of many persons who were not mentioned in the supplemental petition, and who were owners of described .lands that would be affected by the additional arm, more than twenty of whom were also owners of lands that had been described and regularly assessed on the original petition.
No notice of the filing of the report, as required by section three of said act (§5624, supra), was given to the persons brought into the proceedings by the drainage commis
Appellant contends that such last-named persons, being parties legally in court and assessed in the principal action, must take notice of all the proceedings in the cause, including the supplemental petition and the proceedings thereunder, and that a successful remonstrance must be signed by two-thirds of the landowners shown by the preliminary reports in the proceedings as a whole; while appellees maintain that the supplemental petition was, under the provisions of section eight of said act, the commencement of an ancillary action, which required the same procedure throughout as on' the original petition, and that the landowners not mentioned in the supplemental petition, and shown by the commissioners’ preliminary report to be affected, and thus brought into the case, and they not appearing, and not being served with notice, as required in section three, are not assessable for the construction of the proposed arm, and should not be counted in the number qualified to sign a rerhonstrance against the establishing of said proposed arm.
If appellant’s' contention is right, then two-thirds of the number of persons liable to be assessed for the improvement did not sign the remonstrance. If appellees are right in their position, then two-thirds of the assessable persons did sign the remonstrance, and the cause should be affirmed.
We are unable to agree fully with either the appellant or the appellees. So far as relates to the question in hand the act of 1905, supra, provides that the petitioner shall in his petition set forth the general course and distance of the
The commissioners are required to make personal inspection of the lands described in the petition, and of all other lands likely to be affected by the improvement, and to make to the court a preliminary report in which they shall show: (1) The head, general direction and outlet of the drain, and of each arm thereof; (2) a general description of all lands which will be affected by the proposed drain, with the names and residence of the owners; (3) whether such drain is practicable and will be sufficient to drain properly the lands to be affected; (4) whether, when accomplished, the proposed drain will improve the public health, befiefit a highway or be of public utility.
In case any lands not described in the petition are reported in the preliminary report to be affected, notice for twenty days of the filing of such report shall be given the owners by the petitioner, and proof of such notice made as required to be given to the owners of the lands described in the petition; and any landowner not named in the petition, and whose lands are not described therein, but who is named
If the court finds the drain impracticable, or that it will not be of public utility, or if two-thirds of the landowners affected, as shown by the preliminary report, shall, within twenty days after the filing of the preliminary report, remonstrate in writing against the construction of the proposed improvement, the petition shall be dismissed. It is further provided that if it is shown by the preliminary report that the proposed drain will be practicable and of public utility, and there is no successful remonstrance, the court shall refer the proceeding back to the commissioners for a final report — that is, to mark out the line and designate the character of the drain, and assess the benefits and damages accruing from its construction. If no objection is filed to a favorable final report, it is then referred to one of the commissioners to superintend the construction. It is then provided in section eight (§5629, supra) as follows: “The superintendent of- construction or any person interested in such work may also file with the court a supplemental petition showing that lands not assessed for benefits or damages are affected, as the petitioner believes, by such drainage, whether such lands are or are not described in the petition or in either report of the drainage commissioners. Notice of such supplemental petition shall be given as provided in case of the filing of the original petition. The court shall refer such supplemental petition to the drainage commissioners to report thereon; and all proceedings may be had thereon and orders and decrees made in relation thereto, including the construction of additional arms or branches, as if it were an original petition; but the proceedings thereon shall not affect the original petition, unless the court for
It is, therefore, evident that, under the act of 1905, supra, to make a valid assessment upon land, under a supplemental petition, landowners brought into the proceeding by the preliminary report of the commissioners must waive or receive twenty days ’ notice of the filing of the report.
The judgment is reversed and cause remanded, with instructions to overrule appellees’ remonstrance and motion to dismiss the supplemental petition, and for further proceedings in harmony with this opinion.