184 Ind. 680 | Ind. | 1916
Appellees filed their petition in the Clay Circuit Court to drain lands in Eel River bottoms, by straightening, widening and deepening the channel of the stream, from a designated point in Clay County to the place where.it empties into White River, near Worthington. Appellant’s right of way crosses Eel River a short distance above its confluence with White River, and, at .the crossing, appellant has a bridge 135 feet long, and an adjoining trestle 60 feet long. The railroad, at this point, puns east and west, and Eel River approaches the bridge from a direction somewhat east of north. After passing under the bridge, the course of the stream is turned abruptly by a hill, so that it flows thence east, a distance of about 1,160 feet, along the south side of appellant’s railroad, and then
It is contended here (1) that the drainage act of 1907 is unconstitutional and void, (2) that the taking of 300 feet of appellant’s roadway is referable to the eminent domain power rather than the police power, and entitles appellant to damages for the taking, and (3) that if the taking is referable to the police power, due process of law demands compensation to appellant to the extent of the value of the earth taken in the construction of the 300 feet of channel.
In Northern Ind. Land Co. v. Brown, supra, it was held error, under, the act of 1907, to refuse a petition to intervene and remonstrate for damages by one not named in the petition or report of the drainage commissioners. In view of our decisions, it must be held that appellant’s construction of the act of 1907 is erroneous, and that the statute fully authorized appellant, had it desired to do so, to file a remonstrance for damages, though the commissioners reported neither damage nor benefit to its right of way. It follows that the act is constitutional as against the objection urged, and that there was no error in the lower court’s decision on the plea in abatement.
Note. — Reported in 112 N. E. 522. See, also, under (1) 3 C. J. 1410; (2) 14 Cyc 1041; (3) 36 Cyc 1153; (4) 14 Cyc 1024, 1025; (5) 14 Cyc 1045.