West v. Bullskin Prairie Ditching Co.

19 Ind. 458

• Court: Indiana Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Perkins, J.

Suit to enforce the lien of an assessment by a ditching corporation, under see. 16 of the act for the construction of drains and levees. The complaint did not show the termini of the ditch, the lands, other than those of the defendant, through which it extended; nor did it show that the coi’poration had specified the same in their articles, or otherwise, by any order upon the records of the corporation; nor did it contain a copy of the assessment, or the original. It did not appear that the defendant was a member of the corporation.

The complaint was demurred to, because it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled. We think it should have been sustained. The complaint was bad.

The assessment is like the declaration of intention by a mechanic to create a lien; is in the nature of a mortgage, and must be made the foundation of the suit to enforce the lien. The complaint should, also, have described the ditch to be constructed. The seventeenth section of the act above referred to, authorizes any defendant, not a member of the association, to answer that the proposed drain is not of public utility, or of private benefit to hkn. But it will be manifest to the comprehension of any one, by a moment’s thought, that to enable the defendant to determine whether he should so answer, he should be informed of the termini and direction of the entire drain, perhaps the outlet for the water which may empty into it.

Walter March, for the appellant. J. 8. Buckles, for the appellee.

Per Curiam.

The judgment is reversed, with costs. Cause remanded, with leave to amend, etc.