186 Ind. 72 | Ind. | 1916
Lead Opinion
The matters involved in this appeal have their origin in a proceeding instituted in the circuit court of Wabash county on September 13, 1909,
The railroad company filed a remonstrance to the report of the commissioners on the grounds, among others, “that a bridge of the size and dimensions mentioned in said report at the place in question is wholly unnecessary,” and, “that said report is illegal in its recommendation requiring said Wabash Railroad Company to construct the bridge therein mentioned at its own cost, because it is not competent, under the laws of the State of Indiana, to make such requirement of a railroad company.”
On a trial of the above remonstrance the court found specially that a bridge seventeen feet long and eight, feet high- would be sufficient to accommodate the flow of water in the proposed drain and concluded as a matr ter of law that the railroad company should be required to construct such a bridge across its right of way and on the line and grade of the proposed drain at its own expense. From a judgment rendered on the trial court’s conclusions of law, and which established the drain in accordance with the report of the drainage commissioners as thus modified, the railroad company appealed to this court and the judgment was here affirmed. Wabash R. Co. v. Jackson (1911), 176 Ind.
Appellant’s motion to dismiss the above petition and its demurrer thereto were each overruled, and said rulings are now challenged by the assignment of errors in this court. To treat these assignments collectively, it is the contention of appellant, in substance: (1) That this is an action in mandamus and is not authorized under the drainage laws of the State; (2) that, even though a proper proceeding in such cases, an action in mandamus can be brought only in the name of the State oh the relation of the party in interest; (3) that appellee, as superintendent for the construction of the drainage improvement, has no authority under the law to maintain this action, either individually or as a relator; (4) that the trial court had no jurisdiction of the subject-matter of the alleged action; and (5) that appel
Judgment affirmed.
Rehearing
On Petition for Rehearing.
On serious reconsideration of the matters presented we conclude that this cause should be, and it is, remanded to the Wabash Circuit Court with instructions to fix such time for the completion of said bridge by appellant as shall seem fair and reasonable under all the circumstances in issue. In all other respects the judgment of that court is affirmed and appellant’s petition for a rehearing is overruled.
Note. — Reported in 113 N. E. 997, 114 N. E. 975.