Grow v. Davisson

119 N.E. 145, 187 Ind. 304, 1918 Ind. LEXIS 31

• Court: Indiana Supreme Court
• Decided: April 3, 1918
• Docket: No. 23,163
• Status: Published

Opinion

Spencer, C. J.

— Petition by appellees for the location and construction of a certain public drain in Jasper county, pursuant to the provisions of the Drainage Act of 1907. §6140 et seq. Burns 1914, Acts 1907 p. 508. The matter was referred to commissioners, who subsequently filed a report recommending the establishment of the proposed improvement substantially on the line described in the petition. Appellant thereupon filed a remonstrance against this report, on the ground, among others, that his land would be damaged rather than benefited by the new ditch. The court -found against this remonstrance, after a hearing on the issues presented thereby, and entered a judgment establishing the proposed work in conformity to the commissioners’ report, as modified in certain particulars concerning which no question is raised.

1. Preliminary to the hearing on appellant’s remonstrance, he filed a verified plea to the jurisdiction of the circuit court on the ground that the proceeding is in fact one for the cleaning and repair of an old ditch and should have been brought under the provisions of the Drainage Act of 1915. Acts 1915 p. 417. Although the new improvement in part follows the line of an old drain, it is much longer and differs from it in certain other particulars. It has been expressly decided that under such circumstances the act of 1907, supra, is applicable, and the circuit court has jurisdiction of the proceeding. Clifton v. McMains (1915), 184 Ind. 539, 541, 111 N. E. 801, and authorities there collected.

2. The next objection challenges the introduction in evidence of the commissioners’ report on the ground that the engineer, one Nesbit, had no authority to act in the premises. The record shows that the county surveyor voluntarily declined to serve on account of the pressure of other business, and the court appointed Nesbit, a competent and disinterested engineer, to act in his stead. No objection was made to this appointment until the commissioners’ report was offered in evidence and it was then too late. Hardin v. Cook (1913), 181 Ind. 698, 700, 105 N. E. 231, and cases cited.

3. Finally, it is contended that the evidence shows that appellant’s lands will be damaged rather than benefited by the proposed improvement. This objection presents an issue of fact on which the decision of the trial court is not without support in the record. Portland, etc., Mach. Co. v. Gibson (1915), 184 Ind. 342, 346, 111 N. E. 184.

Judgment affirmed.

Note. — Reported in 119 N. E. 145.