180 Ind. 71 | Ind. | 1912
Appellee Pyles and fifteen other landowners filed on September 30, 1907, a petition in the Jackson Circuit Court for the drainage of certain lands and highways. Such proceedings Avere thereafter had without any objection
Coming first in chronological order, is the question of the insufficiency of the petition assigned as error, the first point being that it does not appear that the lands were wholly outside the limits of a city or incorporated town; the appellants’ contention being that “only those who own separate and distinct tracts of land lying wholly outside the limits of cities and towns ’ ’ may petition for drains.
The statute (§2 Acts 1907 p. 508, §6141 Burns 1908) prescribes four classes of petitioners, (a) “owners # * of land * * * outside the corporate limits of any city or town”, (b) “township trustees * * # for drainage of a public highway or the grounds of a public school”, (c) “the common council of any incorporated
The specific objection to the petition is that it does not allege that the lands lie outside a city or town. It does not appear by. the petition that they are in a city or town, and we take judicial notice of the location of cities and incorporated towns, and that there is no city or incorporated town upon any of the land described in the petition. Swails v. State (1853), 4 Ind. 516; Indianapolis, etc., R. Co. v. Case (1860), 15 Ind. 42; Indianapolis, etc., R. Co. v. Stephens (1867), 28 Ind. 429; Louisville, etc., R. Co. v. McAfee (1896), 15 Ind. App. 442, 43 N. E. 36; Wasson v. First Nat. Bank (1886), 107 Ind. 206, 219, 8 N. E. 97; State, ex rel. v. Gramelspacher (1890), 126 Ind. 398, 402, 26 N. E. 81; Mode v. Beasley (1896), 143 Ind. 306, 42 N. E. 727; Terre Haute, etc., R. Co. v. Pierce (1884), 95 Ind. 496; Adams v. Harrington (1888), 114 Ind. 66, 14 N. E. 603;
The question is also sought to be presented for the first time by an assignment of error of the insufficiency of the petition, which is too late after judgment. Plew v. Jones (1905), 165 Ind. 21, 74 N. E. 618.
It has been held repeatedly, with respect to highway and drainage petitions, that all jurisdictional facts need not appear in the petition, but may be shown by evidence. Aetna Life Ins. Co. v. Jones (1909), 173 Ind. 149, 89 N. E. 871, and cases cited; Hall v. McDonald (1908), 171 Ind. 9, 85 N. E. 707, and cases cited; Conaway v. Ascherman (1884), 94 Ind. 187; Watson v. Crowsore (1884), 93 Ind. 220; Brown v. McCord (1863), 20 Ind. 270. And it has been held in such eases that if the qualified petitioners have not signed, the question should be presented by remonstrance. Bronnenburg v. O’Bryant (1894), 139 Ind. 17, 38 N. E. 416.
On its face the petition does not disclose that the lands are not outside the limits of a city or incorporated town, and on. its face is good, even if it was necessary to confer jurisdiction that there be petitioners owning land outside the city or town. Pavey v. Braddock (1908), 170 Ind. 178, 84 N. E. 5; Kemp v. Adams (1905), 164 Ind. 258, 261, 73 N. E. 590; Heick v. Voight (1887), 110 Ind. 279, 11 N. E. 306.
The proposition presented by the remonstrance is, that
Appellees’ position is (a) that a plea in abatement cannot be interposed in this class of cases, owing to there being no provision in the act for such plea; (b) that a pleading in bar is unauthorized in this class of cases. It has been held repeatedly that the provisions of the civil code, may be resorted to in special proceedings, when applicable to supply omissions, where no provision is made in the special proceeding act. Hart v. Scott (1907), 168 Ind. 530, 81 N. E. 481; Clarkson v. Wood (1907), 168 Ind. 582, 81 N. E. 572; Karr v. Board, etc. (1908), 170 Ind. 571, 85 N. E. 1; Crume v. Wilson (1886), 104 Ind. 583, 4 N. E. 169; Bass v. Elliott (1886), 105 Ind. 517, 5 N. E. 663; Kemp v. Adams (1905), 164 Ind. 258, 73 N. E. 590. A plea to the jurisdiction was recognized in Taylor v. Strayer (1906), 167 Ind. 23, 78 N. E. 236, 119 Am. St. 469.
The so-called plea in abatement was properly stricken out. The facts pleaded constitute a plea in bar, but a pleading cannot perform the double office of a plea in abatement, and a plea in bar at the same time Moore v. Sargent (1887), 112 Ind. 484, 14 N. E. 466; Trent man v. Fletcher (1885), 100 Ind. 105; Huntington Mfg. Co. v. Schofield (1901), 28 Ind. App. 95, 62 N. E. 106; Voluntary Relief Dept., etc. v. Spencer (1897), 17 Ind. App. 123, 46 N. E. 477; Shick v. Citizens Enterprise Co. (1896), 15 Ind. App. 329, 44 N. E. 48, 57 Am. St. 230; Alexander v. Collins (1891), 2 Ind. App. 176, 28 N. E. 190. The same facts were pleaded in bar. This was done by supplemental remonstrance, but as jurisdiction of the subject-matter may be raised at any time, appellees are in error, both as to the question of the right to file such plea, and as to the question of its being filed too late.
Upon the motion for a new trial, it is urged that it is shown by the evidence that the proposed drain is so close to a fresh water lake, covering more than ten acres of ground, as to lower the water level in the lake, and is nearer than forty rods to such lake, and does not discharge into a lake. This claim is made under §3 of the act, §6142 Burns 1908, su,pra. The evidence discloses that the proposed drain is through a low lying marshy district, the drainage from which is to the Muscatatuck River. The depressions through which the proposed drain runs, locally called lakes, or ponds, in one instance embraces more than ten acres, but it is disclosed that they all go dry, at times, and when not entirely dry, the water becomes stale, stagnant and covered with green scum, and unhealthful. It is quite certain that they are not lakes, permanent bodies of water, within the meaning of the statute, but are wet weather ponds and shallow basins, forming part of an extended marshy area, with more or less drainage, from the whole, toward the Muscatatuck River, and largely
Complaint is also made of the admission in evidence of the report of the drainage commissioners. Eules of evidence are properly the subject of legislative enactment (Reitler v. Harris [1912], 223 U. S. 437, 32 Sup. Ct. 248, 56 L. Ed. 497), and the statute provides that such report shall be prima facie evidence of the facts stated therein. §6151 Burns 1908, Acts 1907 p. 508, §17; Zehner v. Milner (1909), 172 Ind. 493, 87 N. E. 209, 24 L. R. A. (N. S.) 383; McKaig v. Jordan (1909), 172 Ind. 84, 87 N. E. 974; Sterling v. Frick (1909), 171 Ind. 710, 86 N. E. 65, 87 N. E. 237.
For the reasons here given, and shown by the evidence as to the existence of -the former ditch proceeding as alleged, which is embraced within the same termini and course as the proposed and partly constructed drain, the judgment must be reversed with instructions to the court below to sustain the motions for a new trial, and for further proceedings not inconsistent with this opinion.