178 Ind. 618 | Ind. | 1912
Appellees filed their petition in the Delaware Circuit Court, to establish a drain affecting lands and public highways in Delaware and Henry counties, Indiana, under §6141 Burns 1908, Acts 1907 p. 508, §2. On the filing of a second or new report by the drainage commissioners, in compliance with an order of court, and striking out a remonstrance thereto by appellants Ocker, Painters, and others, and sustaining the remonstrance of appellant George E. Wiley, the court ordered said drain established, and approved the drainage commissioners’ report of assessments and damages, from which judgments this appeal is taken.
The record shows that said petition was filed in the office of the clerk of the Delaware Circuit Court on August 4, 1909. On September 9, 1909, proof of service of notice on owners of lands described in said petition was made, and the petition docketed as a cause of action pending in said court. The petitioners tendered their bonds for costs, which were duly approved. October 4, 1909, the court made a finding that no remonstrance, demurrer or objection had been filed to said petition within the time required by statute, and that the same was sufficient and according to law.
The court referred said petition to Leonidas L. Cooper, drainage commissioner of Delaware county, Harry V. Moore, surveyor of said county, andt William O ’Harra, of Henry county, as third drainage commissioner, with orders to meet October 7, 1909, and report on November 16, 1909, but said time was subsequently extended to January 3, 1910. Said commissioners filed their report in the office of the clerk of the Delaware Circuit Court December 28, 1909, and refiled the same January 3, 1910, and the court fixed January 24, 1910, as the day for hearing said report.
Proof of service of notice on all resident and nonresident owners of land named in said report of the drainage commissioners, and not named in the petition, was made on J anuary 21, 1910.
The court heard the remonstrance of said board on February 14, 1910, and the same was sustained, on the grounds that the report “is not correct and not made in conformity to law, and that the same be not accepted, and that it should be referred back to the drainage commissioners, and that said report be set aside. It is further considered, adjudged and ordered that said drainage commissioners' meet in the office of the clerk of the Delaware Circuit Court in Delaware county, State of Indiana, on the 16th day of February, 1910, and proceed to make and file a new report.” Said drainage commissioners filed their new report February 25, 1910, and March 14, 1910, was set by the court as the day fixed for hearing said second report. March 9, 1910, George E. Wiley, and the other appellants herein, filed their separate and several remonstrances, setting up eight statutory grounds. The petitioners filed their motion to strike out said remonstrance of appellants filed to the second or new report, which motion was by the court sustained, except as to appellant Wiley.
The remonstrance of said Wiley was tried by the court, which after making a special finding of facts, and stating conclusions of law thereon, found that the law was with appellees, and the assessments of benefits made in the report of the drainage commissioners against the land of George
Two questions are presented by this appeal for our determination: (1) Have appellants Oeker, Painters and others, except George E. Wiley, who did not remonstrate against the first report of the drainage commissioners, a right to remonstrate against the seeond or new report? (2) Did the court err in sustaining the remonstrance of George E. Wiley, and has he a right to appeal ?
The court found from the evidence in its special finding of facts, that the proposed drain was practicable, will improve public health, benefit public highways in Delaware and Henry counties, will be of public utility; that the costs, damages and expenses of construction will be less than the benefits to landowners affected; that the assessments on lands affected are just and equitable; that the second or new report was according to law; that said drain will reclaim a large tract of low, wet and unproductive land, and furnish a proper drain for other lands; that the lands of George E. Wiley, remonstrant, will be neither benefited nor damaged by said proposed drain; that his assessments are not reported in the first report of the drainage commissioners, but were included in the second or new report, and the same should be diminished to the full amount of said assessments and stricken out.
We find no error in the ruling of the lower court that would warrant a reversal of this case, therefore judgment is affirmed.
Note.—Reported in 99 N. E. 807. See, also, under (2) 3 Cyc. 349.