[Acts 1905, p. 456. In force April 15, 1905.]

5622. Drainage, commissioner, term, bond, pay.-1. That it shall be the duty of the board of commissioners of every county in this state at its first regular session in December after the taking effect of this act to appoint a drainage commissioner, who shall be a citizen and freeholder of the county, who shall serve for two years. Thereafter, at the regular session of the board in December every two years, a drainage commissioner shall be appointed, to serve for two years. Such drainage commissioner may be removed at any time by the board, and the board shall also, at any regular or special session, have power to fill any vacancy for the unexpired term. Every such drainage commissioner, before entering upon his duties, shall take and subscribe an oath of office, and shall give bond, payable to the State of Indiana, with surety, to the approval of the county auditor, in a penalty not less than three thousand dollars, conditioned for the faithful discharge of his duties. The auditor shall thereupon issue to him a certified copy of the order of his appointment. The county surveyor shall be ex officio a drainage commissioner, and shall be liable as such commissioner under his oath of office and bond as county surveyor. Such drainage commissioner shall receive as compensation for his services three dollars per day for the time during which he has been actively engaged; and the surveyor shall receive four dollars per day for the time actually engaged. They shall, with each of their reports, file an itemized claim for such services, which claim, when allowed, shall in the first instance be paid out of the county treasury on the order of the court for which sums so paid out the county shall be reimbursed as hereinafter provided.

See notes to section 5622, Burns' R. S. 1901.

This act is deemed to supersede prior statutes on the general subject of drainage as found in sections 5622-5742, Burns' R. S. 1901.

The section numbers given to this act begin with the first section number to the chapter on drainage in Burns' R. S. 1901, and are continuous throughout the chapter on drainage.

5623. Petition to court-Contents Bond.-2. Whenever any owner or owners of land which would be benefited by drainage which can not be accomplished in the best or cheapest manner without affecting the lands of others shall desire such drainage, or whenever a township trustee shall desire to provide for the drainage of a public highway or of the

grounds of a public school in the township, which drainage would affect the lands of others; or whenever the common council of any city or the board of trustees of any town shall find it necessary for the successful drainage of such city or town to construct any drains as an inlet or outlet leading into or out of such city or town, which drain, inlet or outlet can not be constructed without affecting the lands of others, such owner or owners, township trustee, common council or board of trustees, as the case may be, may apply for such drainge by petition to the circuit or superior court of the county in which any of the lands of the petitioner or petitioners are situated, or, in the case of a township trustee, or a city or town, to the circuit or superior court of the county, in which such township, city or town is located. The petition shall describe, in tracts of forty acres, according to government surveys, or less tracts where they exist, and in Clark's grant and the French grant and all pre-emptions of Indian reservations, in such tracts as are owned, or shall describe by metes and bounds, the lands of the petitioners and all others which it is believed would be affected by the proposed drainage, and shall give the name or names of the owner or owners of each tract, if known, and, if not, shall so state; and shall also name any city or town or other public corporation which it is believed would be benefited by such drainage, or in which the drainage of a public street or highway or of the grounds of a public school would be benefited. If any of the lands to be benefited or damaged lie within the corporate limits of any city or town, the same shall be described by lots and the number thereof, when such lots are so numbered on the plat books in the office of the county recorder. If the right of way of any railroad, interurban, street car or other company is believed to be affected, it shall be sufficient to describe it as the right of way of such railroad or other company, naming it, through the sections, townships, and ranges over which it is located, giving the number of the same. Such petitions shall be sufficient to give the court jurisdiction over all lands described therein, and power to fix a lien thereon, if they are described as belonging to the persons who appear to be the owners, according to the last tax duplicate or record of transfers kept by the auditor of the county in which such lands are situated. The petition shall also state that, in the opinion of the petitioner or petitioners, the public health will be improved; or that one or more public highways in the county, or streets in a city or town therein, will be benefited by the proposed drainage; or that the proposed work will be of public utility; and it shall state, generally, the method by which it is believed such drainage can be accomplished in the cheapest and best manner, and the belief of the petitioner or petitioners that the cost, damages and expenses of such drainage will be less than the benefits which will result to the owners of the lands and other properties and easements, and to such lands, easements and other properties and to municipalities, likely to be benefited thereby. Such petition shall be verified by the affidavit of one or more of the petitioners; at the time of filing the petition, the petitioner or petitioners shall also give bond, payable to the State of Indiana with surety

to the approval of the court, conditioned for the payment of all expenses in the event the court shall not establish such proposed work of drainage. See section 5623, Burns' R. S. 1901 and notes.

See sections 5636 to 5643, for act concerning drainage in counties having cities of between 59,000 and 100,000 population.

See sections 5644-5649 for act protecting fresh water lakes.

See sections 5657 to 5660, for act regulating the construction of floodgates.

By act of March 9, 1903, Acts 1903, p. 252, section 5623, Burns' R. S. 1901, on the subject of drainage was amended, and by act of 1903, Acts 1903, p. 504, such section was also amended, such act also amending section 5624 of such revision.

By act of March 9, 1903, Acts 1903, p. 384, sections 5626, 5627, Burns' R. S. 1901, on the subject of drainage were amended.

All such acts are regarded as being superseded by the drainage act of 1905.

If a petition for a drain does not ask for the drainage of lakes, the fact that the route of the proposed drain runs through several small natural water basins will not invalidate the proceedings. Goodrich v. Stangland, 155 Ind. 279.

An appearance to a proceeding for the construction of a drain, and contesting the same on the merits without objecting to the petition, waives all irregularities as to filing the petition. Pittsburgh R. R. Co. v. Machler, 158 Ind. 159.

When a township is made a party to a drainage proceeding because of benefits resulting to public highways, such highways need not be specifically described in the petition. Pleasant Tp. v. Cook, 160 Ind. 533.

If the owners of land described in a drainage petition are not named in the petition, nor made parties to the proceedings, no valid assessment can be made against such land. Hunt v. State, 26 App. 518.

If lands are described in a drainage petition as belonging to the persons who appear by the last tax duplicate or record of transfer to be the owners thereof, the petition will be sufficient to confer jurisdiction over such lands. Keiser v. Mills, 162 Ind. 366.

5624. Docketing Notice-Hearing Report Procedure.-3. When a petition for drainage is filed in the office of the clerk of the circuit or superior court, as provided in the last section, the petitioner or petitioners shall note thereon the date set for the hearing thereof, and shall give to each city or town or other public corporation named in the petition as likely to be benefited by such drainage and to the owner or occupant of each tract of land, easement or other property described in the petition, who is a resident of the county in which such tract, easement or other property is situated, and who is not himself a petitioner, notice of the filing of such petition. Such notice shall be written or printed, and shall set forth the route of the drain, levee or other improvement, as described in the petition, the fact of the filing and pendency of the petition and when the same will be heard. The notice may be served and return made by the sheriff as a summons is served and returned in civil action; or it may be served by the petitioner or petitioners, or any of them or by any person for them, by delivering a copy to the person to be notified, or by leaving such copy at his last and usual place of residence, and proof thereof made by the affidavit of the person making such service. The service of such notice upon the station agent of any railroad, interurban

or other company in any county in which the right of way of such company will be affected by such drainage, will be sufficient notice to such railroad or other company; and in case there be no agent of such company in such county such company shall be notified in the same manner as non-resident land owners. Owners of land, easements and other property to be affected by such proposed drainage and who, at the time of filing the petition are not residents of the county or counties in which the lands so owned by them are situated, shall be notified of the filing, pendency and time of hearing of the petition by publication twice in each of the two leading weekly newspapers, printed and published in each county through or into which such proposed work will run, representing the two political parties casting the highest number of votes in such counties, respectively, at the last preceding election, if there shall be two such newspapers published in each of such counties, and if not, then in one newspaper in each such county; and by posting at the door of the court house of each of the counties in which such lands are situated written or printed notices similar in form and contents to those served on resident land owners. Proof of publication and of the time and place of such posting shall be made by the affidavit of the person or persons making such service, or making such publication, or so posting such notices. If it appear to the court that notice has been given of the filing of such petition by service thereof upon resident land-owners and upon non-residents by publication and posting thereof, as above provided, for thirty days before the day fixed for the hearing of the petition, the court shall consider such petition and hear any demurrer or written objection to the sufficiency of the petition offered by any person named in such petition, or by any other person who shall satisfy the court, by allegation and proof, as in civil actions, that he has an interest that will be affected by such drainage, and shall also hear any objection by any of such persons to any of the regular drainage commissioners acting in such matter. All questions in relation to such proceedings shall be tried as a civil action. There shall be no change of venue from the county. At any time before the work is declared established and referred to a superintendent for construction, as provided in the next section, a change of venue may be taken from the judge by the petitioners or any of them, and one by the remonstrants or any of them; but if a change of venue is taken from the judge by one or more petitioners no further change shall be granted to any petitioner, and if such change is taken by one or more remonstrants no further change shall be granted to any remonstrant. Any person appearing to petition, or notified thereof, as hereinbefore provided, shall thereafter be deemed to have notice of all steps taken in such proceeding. If the court find the petition defective, the same may be amended, and if not so amended, may be dismissed at the cost of the petitioner or petitioners., At the end of twenty days after the day set for hearing, if there be no objection filed to the petition, or if it be found insufficient, the court shall refer the same to the drainage commissioners provided for in section one of this act. Should the court find that any of such drainage commission

ers should not act in such case it shall appoint a special commissioner to act in his place; and such special drainage commissioner shall qualify and give such bond as the court may require. The court shall appoint a competent engineer, to make the necessary surveys, who shall qualify, give bond and receive the same compensation for his services as the county surveyor for like work, not exceeding four dollars per day, and his assistants shall receive like compensation to that allowed to surveyor's assistants. Legible copies of all notes made by such engineer in the discharge of his duties shall be deposited by him in the office of the county surveyor on the completion of his work. Provided, If the county surveyor be a competent engineer such duties shall be performed by the county surveyor. All objections to the petition or to any drainage commissioner not made before the reference of the petition to the drainage commissioners shall be deemed waived. In the order of reference the court shall fix a time and place for the meeting of the drainage commissioners, and a time when they shall file their preliminary report. The clerk shall deliver to the commissioners a certified copy of the petition and of such order and they shall meet accordingly. They shall make personal inspection of the land described in the petition and of all other lands likely to be affected by the proposed work, and shall make to the court a preliminary report, in which they shall show:

First. The source or head, general direction and outlet of the drain and of each arm and branch thereof, the average width and depth, what part is to be opened and what part is to be tiled, if any, and whether it is to be dug by shovel, dredge or otherwise.

Second. A description of all lands which will be affected by the proposed drainage, with the names and residence of the owners, if known, and if not, so stating; also the name of any city or town or other public corporation, or highway or street therein not named in the petition, which will be affected by such drainage.

Third. Whether such drainage is practicable and will be sufficient properly to drain the lands to be affected.

Fourth. Whether when accomplished the proposed drainage will improve the public health, benefit any public highway or grounds in the county or counties or any street or public grounds of a city or town therein, or be of public utility. Such report of the drainage commissioners shall in all subsequent proceedings be prima facie evidence of the facts therein stated. In case any lands not named in the petition and not owned by any person who has appeared to the petition, are named in the second item of such preliminary report, notice for twenty days of the filing of such report shall be given by the petitioner or petitioners to the owners of such lands, and proof of such notice made, as hereinbefore provided in case of notice to owner of lands described in the petition. Like notice shall be given to any city, town or other public corporation named in such second item of the preliminary report. Any petitioner, land owner or corporation named in the petition, or who has appeared thereto, shall have twenty days from the filing of such preliminary report within which