145 Ind. 124 | Ind. | 1896
— Appellee brought this action to enjoin appellant, as county treasurer, from collecting the expense of cleaning out and repairing appellee’s allotment of a public ditch.
Appellant demurred to the complaint for want of facts, which was overruled. Appellant filed an answer in two paragraphs, to the second of which appellee filed a reply. The cause was tried by the court, and at the request of the parties, the court made a special finding of facts, and stated its conclusions of law thereon, and over a motion for a new trial judgment was rendered in favor of appellee. The errors assigned call in question the action of the court in
The complaint, so far as necessary to determine the questions presented, is substantially as follows: Appellee is now, and has been for twenty-five years, the owner of the following real estate (describing it); that a public ditch was established by the board of commissioners of Miami county in 1878, and that said ditch was through the lands above described; the allotments for construction were made by the reviewers, and 4,068 feet thereof was allotted for construction to appellee, who constructed the same according to the plans and specifications; that after the construction of the ditch, he, and those acting under authority of law, have cleaned that part of said ditch allotted to him, to the depth thereof originally established by the board of commissioners, to and including the year 1892; that in the allotment made by the surveyor, and the only one that has been made since the construction of the ditch for the purpose of apportioning it for cleaning out or repairing, appellee avers that a majority of the persons whose lands were assessed with benefits for construction of said ditch, did not petition the surveyor to reapportion the same for the purpose of cleaning out and repairing; that on the — day of July, 1893, one William Belt, trustee of Allen township, in said county, by virtue of his office, in pursuance of a claim made by him of cleaning out and repairing said ditch, entered upon plaintiff’s lands and dug and deepened said ditch three feet below the original depth of said ditch as established, westward through appellee’s land a distance of 4,068 feet, and for the work aforesaid, and no other, the said Belt, as such trustee, under his hand, certified to the auditor of Miami co-unty, a sum in gross of $210.96, which said
Section 5633, R. S. 1894 (section 2, Acts 1889, p. 53), authorizes the county surveyor to allot to the owner of each tract of land assessed for the construction of a drain or ditch, the portion he should annually clean out and keep in repair, provided, that when the ditches were originally alloted for construction by reviewers appointed by the board of county commissioners, the allotments shall remain the same for repairs, unless a majority of the parties assessed shall petition for a reapportionment, under the provisions of this act.
Section 5634, R. S. 1894, provides that the surveyor shall give notice to the landowners of the time and place he will hear objections to such allotments. Section 5635, R. S. 1894, makes provision for the hearing, and section 5635, R. S. 1894, gives any person aggrieved the right to appeal from such order of the surveyor to the circuit or superior court. It has been repeatedly held, by the courts of last resort in this State, that if such notice was given by the surveyor, that the only remedy was by appeal. Beatty v. Pruden, 13 Ind. App. 507; Terre Haute, etc., R. R. Co. v. Soice, 128 Ind. 105; Davis v. Lake Shore, etc., R. R. Co., 114 Ind. 364; Trimble v. McGee, 112 Ind. 307.
The presumption is that the county surveyor gave proper notice of the allotments made to appellee, and
Whether or not a majority of the persons assessed petitioned for a reapportionment, was a question to be determined by the surveyor before making any allotment, and which could have been presented by appellee at the time when, and place where, the surveyor heard objections to such allotment, and could have been raised on appeal to the circuit or superior court. This not having been done, the order of the county surveyor, in making the allotment, cannot be attacked collaterally.
The allegation that appellee, and those acting under authority of law, have cleaned that part of the ditch allotted to him, to the depth originally established, to and including the year 1892, does not state facts showing that the township trustee had no legal right to clean out the ditch for the year 1892.
If the work for which the $210.96 expense was incurred was done in July, 1893, as alleged, it will be presumed that it was to complete the repair of 1892,, as no facts are stated showing the contrary.
There is no allegation that the township trustee did not notify him in 1892, as required by the provision of section 5638, R. S. 1894, within what time, between August 1 and November 1, of said year, he was required' to clean out that part of the ditch allotted to him. Neither is it alleged that he, or anyone else, cleaned out his allotment for the year 1892, to the acceptance of the township trustee. Norris v. Tice, 13 Ind. App. 17. The presumption is that the township trustee discharged his duty in every respect, and such presumption can only be overcome by alleging such facts as show the contrary. It is for the trustee to decide whether an allotment of a ditch has been properly
There is no allegation in the complaint showing that the township trustee acted corruptly or in bad faith in cleaning out and repairing appellee’s allotment of said ditch.
Even if the alleged allotment made.by the county surveyor was void, yet to the extent that the trustee, in good faith cleaned out that part of the ditch allotted by the reviewers to appellee for construction, he would be liable to pay therefor. Scott v. Stringley, 132 Ind. 378; Romack v. Hobbs, supra.
.We think, therefore, that the court erred in overruling the demurrer to the complaint.
For the same reasons, each of the conclusions of law was erroneous.
It appears, from the evidence, that said ditch had become partially filled up, and it was necessary to clean out and repair the same. In order to ascertain the depth and width, it was proper to clean out said ditch so as to conform to the original plans and specifications, Belt, the trustee of Allen township, procured Jackson, a civil engineer, to make a survey
After about one thousand feet of appellee’s allotment had been cleaned out to the width and depth as shown by said survey, he commenced an action in the Miami Circuit Court against said township trustee and the others, to enjoin them from cutting the channel deeper than required by the original plans and specifications, alleging, among other things, that said trustee had dug the part already cleaned out three feet deeper than the original depth, as shown by the plans and specifications. The allegations in said complaint were substantially the same as those
The plaintiff (appellee) pretended to clean out such portion of the ditch allotted to him, but has failed and refused to clean out to the depth required by the original plans and specifications, and that, as such trustee, he had refused to accept the work so done by him, and is proceeding to clean the same out to the original depth and width, without enlarging or cutting the banks,” etc.
The cause was tried by the court, and a finding made in favor of Belt, township trustee, and'his co-defendants, and judgment rendered accordingly. Afterwards, the township trustee caused all of said ditch to be cleaned out to the depth and width required, as shown by the Jackson survey, and the expense of cleaning out appellee’s allotment, incurred and paid by the township, was $210.96, which was certified by him to the county auditor, to be placed on the tax duplicate for collection.
The adjudication in said cause was pleaded by appellant in his second paragraph of answer, in bar of this action. During the progress of the trial the papers and entries, including the final judgment in said cause, were offered in evidence by appellant in support of his answer of former adjudication, but were excluded by the court.
This action of the court is specified as one of the causes for a new trial.
It is settled law in this State, that whenever a matter is adjudicated and finally determined by a. competent tribunal, it is considered forever at rest. This principle not only embraces what actually was determined, but also extends to every other matter which the parties might have litigated. Parker v. Obenchain, 140 Ind. 211; Wilson v. Buell, 117 Ind. 315, and authorities cited.
But appellee insists that the doctrine of former adjudication cannot apply, because the parties are not the same. Appellant is only a nominal party, the real party in interest is the township of Allen, represented by its trustee. Stingley v. Nichols, supra; Bigelow Estop., 119, 120.
Allen township is the only party financially interested in the collection of the $210.96. This amount has been paid out of its treasury for the expense of cleaning out appellee’s allotment. The appellant is charged by law with the collection of $210.96 for said township, and when collected the same must be paid over to the trustee thereof. His authority to collect the same depends upon whether the township trustee had the right to clean out and repair appellee’s allotment of said ditch, in the manner in which he did. In the case brought by appellee against the trustee, the Miami Circuit Court adjudged that the trustee had the
Appellant, in collecting the $210.96, acts as the agent of, and represents the township, just as did the township trustee in cleaning out the ditch and paying therefor. In the first case, the action was against the principal; in this case, the action is against the agent.
It is clear, we think, that the parties in interest are the same in each case. McCleskey v. State, ex rel., 4 Tex. Civ. App. 322; Baker v. State, ex rel., 109 Ind. 47; Herman Estop., sections 85, 108, 109, 152; Bigelow Estop., 119, 120.
It follows, therefore, that the court erred in overruling the motion for a new trial.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.