Anson v. Thorn

Morris, C. J. In 1904 appellees commenced this proceeding, which was one to establish a drain. The cause has been here before. Thorn v. Silver (1910), 174 Ind. 504, 89 N. E. 943, 92 N. E. 161. This appeal is from a judgment for appellees, on issues formed by appellants’ remonstrances against the report of the drainage commissioners. These were grounded solely on the allegations, (1) that each remonstrator’s land will not be benefited as much as the assessment against it; (2) that the expense of construction will exceed the aggregate benefits; (3) that the land of each appellant, Tully Anson and Henry L. Maddux, will be damaged. Subds. 5, 7, 8, §6143 Burns 1908, Acts 1907 p. 508. The cause was tried in July, 1911, with a special finding of facts, and conclusions of law thereon, stated by the court, in favor of appellees. Judgment was rendered approving and confirming the assessments contained in the report, and establishing the drain. The errors assigned here are based solely on the alleged errors in the court’s legal conclusions. 1. Appellants contend for a reversal because the court made no finding in relation to the public utility of the ditch, or to its improvement of the public health. They tendered no issue that would make such finding appropriate, though they might have remonstrated on such ground. Subd. 9, §6143 Burns 1908, Acts 1907 p. 508; subd. 9, §5625 Burns 1901, Acts 1885 p. 129. The proceeding, when the cause was heard, was governed by the drainage act of 1907. §21, Acts 1907 p. 508. Thorn v. Silver, supra. By failing to remonstrate for such cause, appellants conceded the truth of the finding in the commissioners’ report, to the [697] effect that the proposed work will be of public utility, and will improve the public health. §6143 Burns 1908, Acts 1907 p. 508. Note. — Reported in 103 N. E. 800. See, also, under (1) 14 Oyc. 1042, 1040; (2) 14 Oyc. 1059; (3) 3 Cye.’l64. As to what property is liable for assessment for construction of drains and sewers, see 2G Tj. R. A. (N. S.) 073. As to wbo is liable for the expense of drainage, see 58 L. R. A. 353. 2. 3. The findings show that the channel of the proposed ditch is in a narrow valley, on either side of which the land rises abruptly to a height of from ten to forty feet, and that the lands of some of the appellants, assessed in the report, are included in such high land. Appellants claim that such lands cannot be directly benefited by the drain, and that consequently they cannot be legally assessed, although the court specially found that each parcel would be benefited to the extent of the assessment made against it in the report. Counsel are in error in such contention. It is not necessary that the benefits shall be direct. Watson v. Armstrong (1913), ante 49, 102 N. E. 273, and eases cited. Other questions are presented, but their determination would require a consideration of the evidence, which is not in the record. Judgment affirmed.