Byers v. Hoskinson

Ewbank, J. Appellees filed a petition for the construction of a public drain in Warrick county from a point in the channel of the Barren fork of Cole creek near the town of Tennyson, southeast for 2,000 feet along the bed of the stream, and thence leaving the creek bed and running due south, cutting through a little ridge and crossing a state highway, to an outlet in Pigeon creek. *227 *226 The alleged reasons for which a new trial was asked were based on the contention of counsel that the court *227 had no jurisdiction to establish the drain and order it constructed across a state highway without first providing for the construction of a bridge across the ditch which would completely restore the highway, to the approval of the State Highway Commission. That they were in error in this contention was decided a few months ago, and we adhere to that decision. State v. Douglas (1924), ante 207, 144 N. E. 548. Appellants and other defendants filed a plea in abatement, setting up the pendency of another drainage proceeding in which the court was alleged to have established a drain and ordered it constructed some three years before the petition was fiied in the case at bar, concerning which the plea stated “that said drain has never been constructed.” But so far from stating facts showing that it was “another drain * * * over the same line and between the same termini” (Shields v. Pyles [1912], 180 Ind. 71, 79, 99 N. E. 742), this plea stated no facts whatever as to the beginning, course or outlet of the drain alleged to have been petitioned for and ordered constructed in the other action, and, indeed, alleged scarcely any facts at all. It merely averred that two persons who then owned the lands described in the petition in the case at bar as belonging to one of the three petitioners (naming him) had joined in the petition by which the former action was instituted, and that said cause was docketed, commissioners were appointed, who made a favorable report, and “said drain was established over the route as laid out and described in said report,” (not alleged to be the same as had been petitioned for, nor otherwise described), and that, after lying dormant nearly three years, the proceeding had been revived on the day the petition in this case was filed, and was still pending. And it also stated conclusions to the effect that “a large number of the then owners (not named) of lands described in the *228 petition herein as affected” (not in any manner identified) had joined in the petition for drainage in the other case, and that said petition prayed “for the construction of a drain for the purpose of furnishing drainage for the same land that the proposed drain in this cause is proposed to furnish drainage for, and for the purpose of taking care of and carrying away the same water from the same watershed that the proposed drainage herein will take care of and carry away.” A plea in abatement because of the alleged pendency of another action for the same cause must show the identity of the two actions by setting out the facts relied on for that purpose “with the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving, on the one hand, nothing to be supplied by intendment or construction, and on the other no supposable special answer unobviated.” Needham v. Wright (1895), 140 Ind. 190, 194, 39 N. E. 510; Brown-Ketcham Iron Works v. George B. Swift Co. (1913), 53 Ind. App. 630, 637, 100 N. E. 584. Appellant’s plea fell short of this requirement. Giving neither the beginning, course nor outlet of the drain as petitioned for in the former action or as therein ordered to be constructed, and not describing any of the lands mentioned in the petition as benefitted, or any of those assessed for its construction, the plea cannot be aided by intendment. Nothing alleged in it disputes the possibility that the other drain may have begun at a different place and followed the valley of Cole.creek to its outlet three or four miles east of the most eastern point in the course of the drain petitioned for in the case at bar, while the course of the latter drain leaves Cole creek after following it for 2,000 feet, and runs a mile and a half nearly due south across a little ridge to an outlet in Pigeon creek, seven qr eight miles down stream from *229 where Cole creek flows into that creek. The mere fact that the two drains would be so located that after a hard rain flood waters from the valley of Cole creek might drain off through both ditches, in different directions, would not defeat the jurisdiction of the court to order the second drain constructed. It was not error to sustain the demurrer to the plea in abatement. For the same reasons, the special plea of appellant Sargent was insufficient to present any question not already put in issue by the remonstrance in which he had joined with his coappellants, and no error was committed in striking it out. The judgment is affirmed.