Tomlinson v. Peters

Olds, J. On the 27th day of February, 1882, the appellants, and others, filed in the auditor^ office of Jay county, Indiana, a petition for a free gravel road in said county, described therein, and at the same time they filed a bond conditioned for the payment of the costs occasioned thereby, in case the improvement asked for should hot be ordered by the board of commissioners. The bond was approved by the auditor of said county on March 2d, 1882. No action was taken by the board of commissioners until September, 1886, when a view and survey were ordered, and viewers and an engineer were appointed by the boai’d to make the necessary view and survey. Various steps were taken, additional petitions were filed, and petitioners asked that their names and land owned by them be counted in favor of the road, and others withdrew from the petition; and after these various steps had been taken in the case, on thé 22d day of December, 1886, the board of commissioners made a finding that the papers were regular, and that the petition was signed by a majority of the resident land owners whose lands were reported as [238] benefited and ought to be assessed, and also by those owning a majority of all the acres of land reported as benefited and ought to be assessed; and, also, that the improvement would be of public utility, and made an order that the road be constructed, and appointed a committee of three persons, to apportion the costs of construction. From this order of the board of commissioners an appeal was taken in this1 cause to the circuit court. A motion was made by the appellants, in the circuit court, to dismiss the appeal, which motion Avas overruled, and the ruling excepted to by the appellants and the exception properly reserved by bill of exceptions ; and the ruling is assigned as error. The question presented by the ruling is as to whether or not an appeal will lie from this order of the board of commissioners. If it will not, then the motion should have been sustained, and the appeal dismissed. The statute evidently does not contemplate more than one appeal in any case, and that must be from the final decision and judgment, in the case. The proceedings remain under the jurisdiction! of the board of commissioners, and they have power to change or annul any order made by them until a decision is made substantially ending and terminating the proceedings before the board. Freshour v. Logansport, etc., Turnpike Co., 104 Ind. 463. In the proceedings for the construction of gravel roads,, the commissioners order the construction of the road, but the road cannot be constructed without the further final action and decision of the board confirming the report of the three freeholders appointed to estimate the expense of the improvement upon the real property, which shall, when so approved and spread upon the record, be a lien on the real property; and until such order and decision is made by the board, the proceedings remain under the jurisdiction of said board of commissioners, and an appeal only lies from such final order. This construction of the statute is sustained by [239] the case of Neptune v. Taylor, 108 Ind. 459, and-authorities cited in that case, and McKee v. Gould, 108 Ind. 107. Filed June 8, 1889; petition for a rehearing overruled Nov. 8,1889. It follows, therefore, that the court erred in overruling the motion to dismiss the appeal. There are other errors assigned, but as the decision of this question disposes of the case it is unnecessary to pass upon them. Judgment reversed, at costs of appellees, with instructions to the court below to sustain the motion to dismiss the appeal.