Morrow v. Geeting

41 N.E. 848, 15 Ind. App. 358, 1895 Ind. App. LEXIS 3

• Court: Indiana Court of Appeals
• Decided: October 29, 1895
• Docket: No. 1,131
• Status: Published

Opinions

Davis, J.

The case here presented, arises on an appeal from an assessment, made upon appellees’ lands, for the purpose of reimbursing the county treasury for moneys paid out for the cleaning and repairing of a certain ditch in Howard and Cass counties.

The court below made a special finding of facts, on which the court stated conclusions of law, in substance and to the effect that the surveyor had no authority to make the repairs, and that the assessments made by him against the lands of appellees were void. The appellant excepted to the conclusions of law. Judgment was thereupon rendered against the appellant for costs. The error assigned in this court brings in review the question, whether the trial court erred in the conclusion of law on the facts found.

The special finding shows, among other things, the following facts: In October, 1882, John Davis filed, in the clerk’s office of Howard county, a petition for the construction of a drain in the counties of Howard and Oass. The entire length of the proposed Davis drain was .27,000 feet. Stake 0, in Howard county, was the commencing point. The stakes were numbered consecutively down stream, being placed at a distance of 100 feet apart, until stake number 270 of the main drain, being its outlet in Oass county, is reached. The petition also included a tributary, known as the “Houser Tributary/’ 4,100 feet in length. The drain was duly established, assessments therefor made, the commissioner of drainage was charged with the construction of the work, who proceeded to have the drain constructed as ordered. In March, 1886, the commissioner reported to said court that said Davis drain had been duly constructed and received, except from stake 0 to a point 80 feet below stake 39, which report was duly approved by the court. In October, 1886, the commissioner reported that he had collected and expended all of the assessments in the construction of the work, except $25.00, and that said drain had not been completed, and could not be completed, under said proceedings, because of the lack of funds', and that in order that the parties benefited thereby should receive the proper drainage of their lands, a new petition would be necessary. This report was approved, the commissioner discharged, and the work under said proceeding discontinued. The proceedings were had under* section's 4273 to 4284, inclusive, R. S. 1881. Thereafter, in the samé month, Charles H. Templeton and others, filed in the clerk’s office of Howard county their petition, under the statute above cited, asking for the construction of a drain, following the same line precisely of the Davis drain, from stake 0 to stake 178 of the Davis drain. Such proceedings were had that this drain was duly constructed.

It appears, from the special finding, that more than two miles of the lower end of the Davis drain, including the Houser branch, was completed and received under the original proceedings, and that the residue of the drain, as originally proposed, was completed and received under the supplemental proceedings. In other words, under the Davis petition and the Temple-ton petition, the entire system of drainage, as originally described and contemplated in the Davis petition, was fully constructed and received. The drain thus constructed was completed in accordance with the plans and specifications from stake 0 to stake 270 as one continuous drain.

The appellant, as surveyor of Howard county in 1890, caused that portion of the Davis drain, commencing at stake 178, in Howard county, and extending thence to its outlet in Cass county, at stake 270, to be cleaned out and repaired. The surveyor proceeded under sections 1193 and 1212, E. S. (sections 5631 and 5642, R. S. 1894). From the assessments made by the surveyor, the appellee, as before stated, appealed to the Howard circuit court. So far as the questions involved on the appeal are concerned, it is not necessary to refer to the special findings of the court with more particularity.

Counsel for appellees insist that the assessments made by the surveyor, for the purpose of cleaning out and repairing the drain, are illegal for two reasons:

1. Because he had no jurisdiction to make such repairs.

2. Because, in making such assessments, he did not apportion and levy the same upon all the lands assessed for the construction of the John Davis drain.

The contention that the surveyor had no jurisdiction to make such repairs, is predicated on the fact that the entire Davis drain, from stake 0 to stake 270, was not constructed in said original proceedings.

It does appear, however, as we have seen, that from stake 178 to stake 270 said drain was constructed in said original proceedings, and that the assessments in question were made for cleaning out and repairing the drain from stake 178 to stake 270. Moreover, it appears that in the two proceedings the entire drain has been fully constructed in accordance with the plans and specifications, from stake 0 to stake 270.

In the view we take of the case, whether the drain was constructed under one or more proceedings, it was the duty of the surveyor, when the same was completed, to keep at least the portion in controversy in repair. Section 5681, supra.

If, however, it were true, that the drain had been constructed only from stake 178 to stake 270, and the residue of the work, — the upper end of the ditch,— had, in fact, been discontinued and abandoned, it was the duty of the county surveyor to have the specific portion so constructed, under the original Davis petition, kept in repair, and jurisdiction was conferred upon him to do so. Artman v. Nynhoop, 132 Ind. 17. In either view of the case, the surveyor, in our opinion, had jurisdiction to make the repairs.

The second proposition of appellees’ counsel has also been settled adversely to them by a recent decision of the Supreme Court. Parke County Coal Co. v. Campbell, 140 Ind. 28.

It is decided, in the case cited, that the assessments .for such repairs are to be assessed in proportion to the benefits received therefrom. Lands assessed for the original construction of the drain, not benefited by the repair, are not to be assessed for such repairs. Therefore, the assessments in question are not void on the ground that all the lands assessed for the construction are not assessed for the repairs. No complaint was made by the appellees, in the court below, that any man’s land was assessed in excess of the amount of benefit received by him on account of such repairs.

When it is shown that the surveyor had jurisdiction to make the repairs, the presumption is that the assessments were made by him against the land-owners affected thereby, in proportion to the benefits received by such repairs. If appellees desired to question the amounts of the assessments, on the ground that the assessments were not made on the basis of the benefits received from such repairs, or that there was some error in making the assessments on this basis, the burden rested on them to show that on this basis the assessments against them were excessive. Rogers v. Venis, 137 Ind. 221; Conwell v. Tate, 107 Ind. 171; section 5631, supra..

Filed October 29, 1895; petition for rehearing overruled May 26, 1896.

In our opinion, the surveyor had jurisdiction to make the assessments. The assessments are not illegal because all the lands assessed for the construction are not assessed for the repairs. It is not shown that any of the lands of appellees are assessed in excess of the benefits received from such repairs.

Therefore, the judgment is reversed, with instructions to restate the conclusions of law confirming the assessments made by the surveyor, and for further proceedings in accordance with this opinion.