154 Ind. 114 | Ind. | 1899
On September 10, 1896, appellants filed a petition for drainage under the act of 1885 as amended in 1889. Acts 1885, p. 129; Acts 1889, p. 285, §5622 et seq. Bums 1894, §4273 et seq. Horner Í897. The proposed drain would affect about 100,000 acres in Jay and Blackford counties and would pass through the corporate limits of the city of Portland. The method to be employed was the straightening and deepening of the Salamonie river.
The determination of the questions presented depends mainly upon the meaning of section two as amended in 1889 and section three of the drainage act of 1885. Section two directs how and by whom the petition is to be made. Section three provides for filing the petition in the clerk’s office, for giving notice, for docketing the cause after notice thereof, for the allowance of ten days after docketing in which landowners may object to the form of the petition and the competency of the drainage commissioners, and for a hearing of such objections at the end of the ten days. Next follows this proviso: “Provided, that if at this stage of the proceedings [within ten days after the cause is docketed] two-thirds in number of the landowners named as such in such petition, resident in the county or counties where the. lands affected are situated, shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed at the cost of the petitioner.” The part of section two, as adopted in 1885, necessary for consideration, reads: “Whenever any owner or owners of any separate and distinct tract or tracts of land which would be
Appellees, in support of their demurrer on the ground that the court did not have jurisdiction of the subject-matter, urge that the amendatory act of 1889 violates section 20 of article 4 of the Constitution, which reads: “Every act and joint resolution shall be plainly worded, avoiding as far as practicable the use of technical terms.” No technical terms are used and the act is plainly worded. The difficulty, so far as any exists, lies rather in the structure of the sentences. But, by considering the act of 1885, the Anderson decision, and the new matter added by the amendatory act of 1889, it becomes plain that the object of the legislature of 1889 was to provide for drainage in an exceptional class of cases. Prior to that time circuit courts had jurisdiction of drains that lay wholly in the country; cities had exclusive jurisdiction of drainage within their limits and might provide an outlet beyond their limits; but there was no provision for draining country lands in case no outlet was available, without extraordinary labor and expense, except through the corporate limits of a city. The amendatory act of 1889 was obviously enacted to remedy this condition.
Appellees insist that the court did not have jurisdiction because the petition disclosed that a river was to be improved, straightened and deepened. If the object of straightening a water course is to prevent the banks from washing, to protect a highway, to avoid the construction of a bridge, or the like, it is decided that the boards of county commissioners have exclusive jurisdiction. Scruggs v. Reese, 128 Ind. 399. But if the object is the drainage of wet lands and the improvement of the water course is merely a means to that end, the drainage act of 1885 gives the necessary power to the circuit courts. Lipes v. Hand, 104 Ind. 503. The petition avers that numerous bodies of land, particularly described, will be benefited by the proposed drainage; that many highways and streets will be improved; that the public health will be promoted; and that the proposed results can most readily be accomplished by straightening and deepening the river and constructing lateral drains.
Appellees, in support of their demurrer on the ground that the petition does not state sufficient facts, argue that the petitioners should have alleged the particular circumstances by reason of which the proposed drainage could not be accomplished, without extraordinary labor and expense and in the best and cheapest manner, except by passing-through the corporate'limits of Portland. The averments
The main contention of appellants is that the conclusion of law on the special finding is wrong. The court found that 2,763 landowners named in the petition were before the court; that 733 of these were nonresidents of Jay and Black-ford counties; that of the 2,030 residents 1,639 were remonstrants against the improvement. As a conclusion of law the court stated that the petition ought to be dismissed. There was no finding that the lands of the petitioners, who were and had to be owners of lands lying outside the limits of Portland, could not be drained, without extraordinary labor and expense and in the best and cheapest manner, except by putting the drain through the city. It is manifest that the court, in determining the sufficiency of the remonstrance, acted under the provisions of section three of the act of 1885. The claim of appellants is that the sufficiency of the remonstrance should have been determined by the proviso added to section two by the amendatory act of 1889. Prior to 1889 the proviso in section three governed all cases that could be brought under the act of 1885. The proviso added to section two in 1889 does not repeal the proviso in section three; it operates merely as an exception to the general rule laid down in section three. Section three provides for a dismissal of the petition if two-thirds of the resident landowners remonstrate. Amended section two requires a dismissal only in case the improvement is opposed by two-thirds of the landowners, without regard to residence, who own or represent two-thirds of the lands affected. Why the legislature thought this distinction proper or necessary is beyond the province of judicial inquiry. But it was incumbent upon the petitioners to prove to the court that their case came within the exception. If the remonstrance pro
Appellants urge that the court erred in refusing to permit them to file a verified plea in abatement of the remonstrance. The plea shows that several papers, stating at th'e head different objections to the proposed drain, were circulated among the remonstrants; that these papers were put together by some unknown person and all of the headings stricken out but one, thereby causing without authority all the remonstrants except those signing the one paper to subscribe to grounds of objection other than those stated at the head of the papers they signed. As no grounds of objection need be stated in this sort of a remonstrance, the striking out of particular grounds by some unauthorized person was immaterial. The persons that had charge of the papers had authority to put them together and file them.
The court overruled appellants’ motion to reject the remonstrance. This motion was designed to test the sufficiency of the remonstrance as a pleading. Properly, it was not a pleading. It did not need to state facts sufficient to constitute a defense to the petition. If the required number of landowners, with proper qualifications, “shall remonstrate in writing against the construction of such drain or ditch, such petition shall be dismissed.” Simply that they do not want the drain is enough. That the required number, with proper qualifications, have signed the remonstrance is to be determined by proof. This remonstrance against a proposed drain is similar to the remonstrance against the granting of a liquor license that may be filed “by a majority of the legal voters of the township or ward”. In Head v. Doehleman, 148 Ind. 145, it was decided that the remonstrance need not aver that the
Several months after the remonstrance was filed and at the time it was being heard, appellants’ offer to file the withdrawal of 190 remonstrants was refused. A period of ten days after the docketing of the cause is allowed in which to file a remonstrance for dismissal of the petition. "Within that time any remonstrant has the right to withdraw whether the remonstrance has been filed or not. After the ten days have elapsed, the question for determination on the petition and remonstrance, no matter how long the delay before the' hearing is had, is whether or not the required number of landowners, with, proper qualifications," were remonstrants at the expiration of the ten days period. No remonstrant may withdraw' subsequently. State v. Gerhardt, 145 Ind. 439; Conwell v. Overmeyer, 145 Ind. 698; White v. Prifogle, 146 Ind. 64; Sutherland v. McKinney, 146 Ind. 611.
Appellants next complain of the action of the court in permitting 186 persons, not named in the petition, to file their remonstrance without first making application to be admitted as parties. The court treated the presentation of their remonstrance as an application in itself to be admitted as parties, and the petition was amended, at the suggestion of counsel for the petitioners, by adding the 186 names as owners of lands affected by the proposed drain. This assignment discloses at most a bare informality.
A witness for appellants, after testifying that one Yotaw in May, 1896, died the owner of lands described in the petition and left children surviving him, was asked and not permitted to answer this question: “Give the names of the children or heirs that Jonas Yotaw left at the time of his death.” Thereupon counsel for petitioners stated to the court that Yotaw was named in the petition as owner of lands affected; that he died before the filing thereof; that the tax duplicate shows the title of the lands to be now in
The court taxed against appellees certain costs of the sheriff for serving subpoenas upon remonstrants, issued on the precipe of the remonstrants, and witness fees claimed by remonstrants. They were bound to testify in their own behalf without being subpoenaed. They could not run up these costs against the petitioners. Goodwin v. Smith, 68 Ind. 301; Reader v. Smith, 88 Ind. 440.
Judgment affirmed.
■Monks, J., did not participate in this decision.