169 Ind. 166 | Ind. | 1907
“Under an act concerning gravel roads,” approved March 9, 1903 (Acts 1903, p. 255), appellants filed before the Board of Commissioners of the County of Tipton their petition for the improvement of a highway in said county. The petition was in circulation for signatures on January 12, 1905, and notice of the intention to present the same to the commissioners was posted January 17, 1905, and the petition was actually presented February 6, 1905. When the petition was first put in circulation for signatures, January 12, there were nine resident landholders of the county whose land abutted on the proposed improvement, five of whom signed the petition. On January 14 and 23, respectively, Edward G. Becker, one of said abutters, conveyed by deed, his wife not joining, to each of his five children, a separate part of his land, each part abutting upon said proposed improvement, and at the time of the presentation of said petition to the commissioners, to wit, February 6, there were fourteen resident landowners of the county whose land abutted on the proposed improvement, but five of whom had signed the petition for the gravel road. On the day set for the hearing of the petition the nonpetitioning abutters, nine in number, including the grantees of Edward G-. Becker, appeared before the commissioners, and moved to dismiss the petition, on the ground that the same was not signed by a majority of the resident abutting landowners. To the motion the petitioners filed a verified answer to the effect that the grantees of Edward G. Becker, naming them, were not bona fide holders of said lands, but were fraudulently made sirch holders for the fraudulent purpose of increasing the number of abutting landowners, and thereby preventing the five petitioners from constituting a majority of such abutters. To the answer Edward G. Becker replied in denial. The motion to dismiss the petition was overruled, and the board expressly found that “the petition is signed
In passing, it is well to bear in mind that the appellees appeared before the commissioners at the first presentation of the petition and challenged their jurisdiction for want of a sufficiently signed petition, and raised the same question by remonstrance and on appeal to the circuit court. Section seven of the act of 1903, supra, provides that on or before the day set for the hearing of the report of the viewers, the owners of any lands affected by the work may remonstrate against the report for any or all of the following causes: (1) The report is not according to law; (2) assessments are too high; (3) damages are too low; (4) costs are more than benefits; (5) improvement not of public utility. It will be noted that there is no language excluding other grounds of remonstrance.
Section fourteen of the act of 1903, supra, provides: “Any person who appeared and filed a remonstrance before the board of commissioners shall be allowed an appeal to the circuit court, in like manner as appeals are now allowed to be taken from the board of commissioners to the circuit court, and on such appeal the only question that can he tried in the circuit court shall be the questions raised before the board of commissioners.” Planting themselves upon the last clause of the above statute, appellants contend that the act of 1903, supra, provides a special scheme for the
In 1852 the General Assembly passed two general laws, one concerning highways, the twenty-sixth section of which (§6754 Burns 1901, §5027 R. S. 1881), so far as material here, reads thus: “Any person aggrieved by any decision of any board of commissioners, may appeal therefrom to the circuit court of such county.” The other provides for the organization of boards of commissioners, defines their powers and duties, and in the thirty-first section (§7859 Burns 190.1, §5772 R. S. 1881), says: “Prom any decision of such commissioners there shall be allowed an appeal to the circuit court by any person aggrieved. ’ ’ Since the passage of these acts there have been many enactments of' a special character concerning cities and towns, and drainage and highway proceedings, in which certain limitations of the right of appeal have been declared.
Judgment affirmed.