Rayl v. Kirby

Myebs, J. •Proceeding by appellees for tiling a portion of an open public drain in Howard County, by proceedings before the board of commissioners. On general remonstrance the proceeding was dismissed. On appeal to the circuit court the remonstrance was held insufficient, and such proceedings had that the ditch was established, from which order this appeal is prosecuted. The errors assigned are predicated on exceptions to the conclusions of law on the court’s special finding of facts, and in overruling the motion for a new trial, and the question to be determined is the sufficiency of .the remonstrance. The petition was signed by four persons: two Kirbys, husband and wife, who owned one tract of land affected as tenants by the entirety, and the husband owned a tract in his individual name; one signer was in fact the township trustee, but signed' as an individual, though he had personally no interest; the fourth person was an individual owner. The persons named in the petition as owners of land were twenty-two in number, including in three instances husbands and wives owning as tenants by the entirety, the two Kirbys being thus included, and in addition civil Clay Township. That is, there were tw.enty-two persons named, six of whom were husbands and wives, and in addition the civil township. Of these individuals three were admittedly nonresidents of Howard County. A fourth person was notified only as a nonresident, as to whom it is claimed that he was in fact a resident, which was a fact disputed on the trial, and he received the notice by mail and made no appearance or objection in the proceedings. Within the twenty days provided by the statute (§6142 Burns 1908, Acts 1907 p. 508) for remonstrating, a remonstrance was filed containing the names of twelve of the persons, individual owners, named in the petition as affected, two being husband and wife. [556] Among these was Elizabeth Merrill a life tenant. There were in fact three remaindermen, persons resident of Howard County, and the ditch ran through their land. None of the three remaindermen were served originally with notice, or appeared to the action. It appears from the record that after the report of the commissioners came in, notice was ordered given to additional parties, and notice is shown to have been given to the trustee of the civil township, and the three resident remaindermen. This of course was after trial on the remonstrance. The court found on the trial that twenty-two persons, and in addition the civil township, were named in the petition as affected by the proceedings, in which number were included the life tenant, but not the remaindermen, and each of the husbands and wives of three instances of tenancies by the entirety, notice having been given to each, except that in cases of tenancy by the entirety notice was given the husband only. That twelve of the persons so named, including the life tenant, were residents of Howard County and signed the remonstrance, one of whom was the wife of one of the tenants by the entirety. That eight of the persons named who were residents of the county did not sign the remonstrance, of which two were the wives of tenants by the entirety, the two husbands being also counted to make up the eight, and the civil township was also counted to make up the eight, as also was the landowner Boyd, as to whom the question of residence was waged. It was also found that there were three remaindermen nonresidents of the county. The court concluded that the remonstrance was insufficient. It is the position of appellants, that husbands and wives, where the real estate is held as tenants by the entirety, can only be counted as one person, and that in case one of the spouses holds other property in his or her individual right, having been counted as one with the spouse, he or she cannot be again counted, or taken into consideration. In view of our conclusions it is unnecessary to determine this question as [557] the judgment must be affirmed independently of that question, on other grounds which eliminate the question. 1. It is next urged by appellant that "persons not named in the petition or remonstrance cannot be counted even though they may be affected by the proceeding.” This cannot be granted. Take this case: Mrs. Merrill is the life tenant; three of her children, remaindermen, reside in Howard County; the ditch runs through their land; if an assessment is made against the land, the burden must be borne by her and by them. Hay v. McDaniel (1901), 26 Ind. App. 683, 60 N. E. 729. For the purpose of obtaining jurisdiction to assess the land, it is sufficient to describe the land as it appears to be owned by the last tax duplicate or record of transfers, but that is a matter wholly apart from the actual ownership of the land, and the fair construction of the statute is that not only those who are named in the petition but in addition those "who may be affected by any assessment or damages” (damaged). The object is to enable two-thirds of those who are really affected to express their desires and defeat a proceeding if they so elect. If this were not so, it would be an easy matter in case of numerous persons owning as tenants in common by inheritance, whose lands still stand on the tax duplicate in the name of the ancestor, to defeat their rights, arising from silence, by not naming them in the petition, when silence may be as effective as affirmative remonstrance. It is conceded that they may come in by remonstrance, and are then to be counted, but they may be affected by silence as well as by affirmative, action, for they may be, and in this ease were, named in the report, and brought in by notice. The fact that they may be affirmatively heard, is a concession that they are affected, because they could not otherwise be heard, and -if they choose to sit silent, they may do so, let the result be what it may, but they none the less go to make up the landowners affected. [558] 2. 3. 2. [559] 4. 5. [557] Under former laws, the power of general remonstrance [558] was restricted to two-thirds in number of those named in the petition, resident of the county or counties affected by the drain. Under those acts, theoretically at least, all persons to be affected were made parties, and as the remonstrance preceded the report, those named were presumptively all the persons affected, and so it was held that the right to a general remonstrance did not exist after the statutory period for remonstrating against the petition, although additional persons are brought in. Yancey v. Thompson (1891), 130 Ind. 585, 30 N. E. 630. This statute, §6142 Burns 1908, Acts 1907 p. 508, greatly enlarges the power of remonstrance to “two-thirds in number of the landowners named as such in the petition or who may he affected hy any .assessment or damages, [damaged] resident in the county or counties where the lands affected are situate.” (Our italics.) But it is appellants’ contention that those not named in the petition but who may be affected must remonstrate, take affirmative action against the proceeding, otherwise they cannot be counted, that is, that while they may remonstrate, it is only by remonstrance that they can be considered, and that they cannot be considered by standing silent, however they may be affected: that is, by remaining passive, they are not to be considered as landowners affected by any assessment or any damages done them, however much they may be affected. This contention we deem too narrow. The statute is a remedial one, and should receive a construction which is fair and reasonable. By standing silent, those who are in favor of the improvement as effectually express their wishes in favor of it, as those who remonstrate express their wishes against it. If they have not been named in the petition, whether inadvertently or purposely, they may be none the less affected, and paradoxical as the statement may seem, if they can have no voice by their silence before the report comes in, they can have none later, and would be thereby denied any voice in the matter. Again, if under appellants’ [559] contention only those affected, and not named in the petition can be heard or counted by coming in and remonstrating, they would exclude those favoring the improvement, who are in the same category and have the same rights and interests as themselves, and who by reason of favoring it, can only effectuate their wishes by silence. The act should not receive so unfair a construction. It is the general intention of the act to let in the voice of all who are affected, and some of the reasons for this construction are pointed out in, Thorn v. Silver (1910), 174 Ind. 504, 519, 520, 89 N. E. 943, 92 N. E. 161. This being true, the three Merrills, remaindermen, residing in Howard County, are to be counted, unless appellants’ point is well taken, that to permit those not named in the petition, or in the remonstrance, to be counted, would change the issues indhe circuit court. It is too well established to require citation of authority that the cause is tried de novo in the circuit court, and that no issue can be tried there, which was not involved before the board. But there was but one issue before the board, and that was whether the remonstrance was filed by two-thirds of the landowners named in the petition or affected, and the issue was the same on appeal, and there the question was, Who should be reckoned ? It does not follow as counsel urge, that persons not served with notice are not to be counted because they cannot be affected. That is but stating a half truth, for it may just as certainly be known, and would certainly be, where the ditch runs through one’s land, that he would be affected, at least as to the jurisdiction to enter upon his land, before the commissioners are appointed as later, but he may be named in the report as affected and notice given him afterwards, but he is affected by the proceeding the same as those first named, and stands in the same category with them as to rights and obligations, and that relation may be known as well within twenty days after docketing the petition as after the report is in, in addition to the fact, [560] that if his interest is not recognized until after the report is in, he is not in as good situation as others, or as he would be before, as to the assertion of his rights, either by affirmative action or by silence. Yancey v. Thompson, supra. If it is a right, or a condition he could then assert, it is a right which others affected may rely on. Those who do not remonstrate are as effective by silence as by remonstrance, where they are named in the petition. Why not those, also, who are affected, but silent? It is immaterial what that effect is; if they do not remonstrate, they are as much assenting, as a petitioner. Thorn v. Silver, supra. 6. In this case, conceding that notice to the life tenant in whose name the land was taxed, was sufficient to confer jurisdiction to assess the land, that notice was for that reason binding on the remaindermen as privies in estate and in law, and it would be a strange contradiction to say that while they might remonstrate and be counted, they should not be regarded as assenting by silenee and not be counted, for that purpose. We are quite sure that such construction should not be given. 7. Whether therefore a husband owning real estate in his individual right, and owning other real estate as tenant by the entirety, both he and the other spouse are to be counted as one, or two persons, affected, or whether in cases of tenancies by the entireties,. both spouses shall be counted as one, or two persons, from the fact of the three Merrills, remaindermen, being affected and residents of the county, and whether Boyd be regarded a resident or a nonresident, the remonstrance was insufficient. Counting husbands and wives as separate owners, named in the petition, and the three Merrills as affected but not named in the petition, there were twenty-six owners named, of these twenty-two were residents of the county, three were nonresidents, not counting Boyd either as a resident or nonresident. Only twelve residents thus counted remonstrated. If we count them with the spouses owning by entireties, [561] counting but one landowner each, except in case of a landowner who in addition owns individually, there were twenty-four owners named in the petition, including the three Merrills. Of these, twenty were residents of the county, three were nonresidents, not counting Boyd either way. Thus counting, only eleven persons remonstrated. If we count all instances of husband and wife as one landowner named in the petition, including the Merrills not named, but affected, we have twenty persons affected, of these nineteen were residents, three nonresidents, not counting Boyd either way. Thus counting there were eleven remonstrants. It thus appears that in no view of the case, was the necessary two-thirds remonstrance filed. 8. 9. Error is urged in the admission of evidence regarding the residence of Boyd, it being in fact in Howard County, when notice had been given him as a resident of Cass County, upon the ground of estoppel. He is making no complaint of the service, and unless the question of his residence affects appellants in some right, they cannot complain of the service as to him, and it was immaterial in this case, for the reason that if he were still treated as a resident of Cass County, the result would be the same. Error is also urged in the admission of evidence of the title in, and residence of the three Merrills, residents of Howard County. In view of our conclusions as to their being affected parties, and entitled to be counted in determining the remonstrance there was no error in this action. The court did not err in its conclusions of law, or in overruling the motion for a new trial, and the judgment is affirmed.