183 Ind. 232 | Ind. | 1915
— On September 16, 1909, appellee, Ryan, with others, filed in the circuit court of Jasper County, their petition for a drain describing a particular route and terminus, with a description of the lands affected by the proposed drainage, with the names of the owners therein set out. Proper notices were given to all parties interested of the pendency of such petition and that the same would be docketed on December 4, 1909. No objections were interposed by appellants to the docketing of the cause, and the same was, on March 12, 1910, referred to drainage commissioners, with instructions to make report April 18, 1910. Extension of time for making report was granted by the court from time to time until September 24, 1910, when the commissioners made a report, in which report the commissioners stated that the route and outlet as described in the petition would, in their opinion be impracticable, and suggested that another outlet known as the “Pinkamink” route would, in their opinion be practicable. The court thereupon ordered that the petition be amended so as to make the proposed drain over the last named outlet. In pursuance to the order of court a new petition was filed on October 10, 1910, and the same was set for docketing on the second Monday of November, 1910, and notices ordered. Service of notice was again made on all parties named in the original and new or amended petition, including all of the appellants. On November 29, 1910, one Almira Stockton filed a. plea in abatement, and at the same time her affidavit for a change of judge, and objections to the county surveyor acting in the matter. The petitioners thereupon filed their motion in writing to amend the petition by striking out all of the lands of Stockton as described in the amended petition. The court sustained the motion of the petitioners and the petition was so amended that Almira Stockton was no longer a party to the proceedings and from that time ceased to be in any way connected with the case. The court at the time the petition was amended excluding Stockton, struck
Following this proceeding the court referred the amended petition to the drainage commissioners. The commissioners filed their report on May 12, 1912. Up to this time no objections were made or exceptions reserved to any ruling of the court by any of the appellants. Within the time allowed by law after the filing of the report by the commissioners, all the appellants except Ray D. Thompson filed remonstrances. The case came on for hearing and after some evidence had been heard, the court on December 23, 1912, referred the matter back to the drainage commissioners with instructions to establish certain grade lines and also made the following order, “That said commissioners are hereby directed to narrow the rock cut from twenty-five and twenty feet on the bottom to fifteen feet”. To this action of the court in referring the matter back to the commissioners, the remonstrators duly objected and excepted, and the appellant, Austin O. Moore, -assigns this as one of the causes for a new trial, and also assigns it as one of the errors relied upon for reversal in this court.
On December 31, 1912, the commissioners made report of their doings as by the court directed, and appellants filed remonstrances separately; the fifth cause of their remonstrance being the tenth statutory cause, viz., “that the proposed work as decided upon and reported by the commissioners, will not be sufficient to properly drain the land to be affected” by the construction thereof. §6143 Burns 1914, Acts 1907 p. 508, §4.
Trial was had on the issue thus formed and after modifying some of the assessments the court confirmed the report of the commissioners and ordered the construction of the drain. Appellants filed separate motions for a new trial which were overruled and exceptions were duly reserved and appeal prayed to this court where appellants assign errors separately.
The questions presented by this appeal and not waived are, (1) the action of the court in permitting the amendment of the petition for the drain; (2) the action of the court in overruling the motion for a change of judge by Almira Stockton and (3) the action of the court, after hearing a part of the evidence in referring the report of the commissioners on the second oh amended petition back to the commissioners with directions to cut down and reduce the size of the drain as reported by the commissioners.
If the court trying the cause shall find that the cost of the construction as specified in the report of the commissioners shall not exceed the benefits, and none of the other causes of remonstrance are pleaded or proven, then the only thing the court can do is to establish the drain and
For error of the court in referring the report hack to the commissioners with instructions to narrow the drain to fifteen feet, this cause is reversed with instructions to grant a new trial and to proceed to trial upon the report of the commissioners as originally filed.
Note. — Reported in 108 N. E. 98. As to servitude of easement to receive the flow of water, see 32 Am. Dec. 123. As to the procedure for the establishment of drains and sewers, see 60 L. R. A. 161. See, also, under (1) 14 Cyc. 1033; (3) 14 Cyc. 1046; (4) 14 Cyc. 1047; (5) 14 Cyc. 1044 ; 2 Cyc. 718.