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he be engaged on two or more works on the same day he shall divide such day among such works in proportion to the time devoted to each. For the purpose of reimbursing the county treasury the surveyor, as soon as the contracts for the repairs are made, and before any work is done thereon, shall apportion and assess the costs thereof upon the lands and corpora tions to be benefited by such repairs in proportion to such benefits and in no case in excess of the benefits: Provided however, That if such repairs shall have been rendered necessary by the act or negligence of the owner or occupant of any lands, or that of any employe or agent of either, or if the drain is filled and obstructed by the cattle or other stock of such land owner or his tenant or agent, the cost of the repairs so made necessary shall be assessed against such lands alone. The county surveyor shall make a record of such assessments, to be kept in his office and open to public inspection, and shall, within five days after making any assessment, post up written or printed notices in three public places in each township where such lands assessed are situated, and near to the work done, and one at the door of the court house of each county in which any of such lands are situated; and he shall note on the record in his office the time and place of posting of each of such notices. Any person or corporation so assessed may appeal therefrom to the circuit or superior court of the county in which the proceedings for the construction of the work were had, by filing with the clerk of such court, within ten days from the date of posting such notices, an appeal bond payable to such surveyor in twice the amount of his assessment, with surety to the approval of the clerk, conditioned that he will duly prosecute his appeal and pay all costs that may be adjudged against him. Thereupon the clerk shall issue a summons to the county surveyor which shall be served by the sheriff; and the surveyor shall file with the clerk a copy of the record of the assessment for such repairs, also of the notice thereof and a statement showing when and where the same was posted, which shall be all the pleadings necessary, and the appeal shall stand for trial at the same time as an appeal from the judgment of a justice of the peace. Such appeal shall be tried by the court without a jury; there may be a change of venue from the judge, but not from the county, and the only question tried shall be to determine whether such repairs are necessary, what is the cost thereof, whether appellant's lands are benefited thereby and, if so, what part thereof should be assessed against the lands of the appellant. From the decision of the court there shall be no appeal. Any contract for repairs shall be subject to the action of the court on such appeal. And no work shall be done until such appeal is determined. If the court shall reduce the assessment against the lands of the appellant twenty per cent. thereof, all the costs occasioned by the appeal shall be added to and made a part of the total assessment and be distributed to the various tracts of land assessed for the repairs in proportion to such assessment, but if the court shall not reduce the assessment against the lands of the appellant twenty per cent. thereof, then the appellant shall pay all costs occasioned by the appeal, including the per diem of the surveyor for making the copy
of the assessments. When such appeal is disposed of, the clerk of the court shall make out a certified copy of the assessments as confirmed by the court, and if no appeal is taken, the county surveyor shall make out such certified copy of assessments as made by him, and such clerk or surveyor, as the case may be, shall file such copy of assessments with the county auditor of each county in which lands are assessed. Thereupon each of such county auditors shall place so much of such assessments as are against the lands in his county upon the tax duplicate, and such assessments shall be a first lien, as taxes are a lien, upon the lands against which they are assessed, and shall be due and collected at the next ensuing semi-annual payment of state and county taxes, and all laws for the collection of state and county taxes shall apply and be enforced in the collection of such assessments. If more than one person appeal the cases may be consolidated and tried together; in which case the costs shall be apportioned as justice may require. The provisions of this section shall also apply to all works of drainage constructed under any law heretofore in force in this state. Upon failure of the county surveyor to perform the work required of him by this section, after ten days' of this notice in writing, by any person interested, such person shall have the right to file his petition for such repairs in the office of the clerk of the court in which the proceedings were had for the construction of such work of drainage on giving to such surveyor five days' notice in writing to appear before such court, or the judge thereof in vacation, and show cause why such reports [repairs] should not be made; and such court or judge shall have the right to hear and determine such matter finally, and if such repairs are ordered the county surveyor shall be required to pay the costs of such petition, notice and hearing, and also such petitioner's reasonable attorney's fees: Provided, however, That any such repairs may, at any time, with the consent and under the direction of the county surveyor, be made at their own expense by any person or persons whose lands will be benefited thereby, and in such case the per diem of the county surveyor shall be paid out of the county treasury on the order of the county board. Nothing in this section shall be so construed as to prevent the construction of a new work of drainage along the line of the former drain.
See sections 5650-5656, for act regulating the cleaning and repair of drains on petition of parties interested.
See sections 5631 to 5639, Burns' R. S. 1901, and notes as to repairing and cleaning drains.
The acquiescence of landowners in invalid allotments for cleaning and repairing of a drain will not bind them as to future allotments. Hille v. Neale, 32 App. 341. The act of 1897, providing for the perfecting of invalid allotments for the repairs of drains by giving notices thereof, applies only where there was an attempt to give notice and does not apply when no attempt was made to give notice. Hille v. Neale, 32 App. 341.
The fact that a notice given by a surveyor to a landowner of an allotment for the repair of a drain calls the allotment a "re-allotment" does not invalidate the assessment. Hille v. Neale, 32 App. 341.
No appeal lies from the judgment of a circuit court rendered on an
an order of a county surveyor making allotments for the repairs of drains. Pittsburgh Ry. Co. v. Gillespie, 158 Ind. 454.
If a landowner fails to complete the repairs of the drain alloted to him within the time fixed by law, he cannot avoid liability because the township trustee agreed that he might finish the work after the expiration of such time. Davison v. Campbell, 28 App. 688.
When a landowner fails to complete the work on his allotment within the time fixed by law, the trustee may complete the work and the cost thereof will be a lien on the land, although the trustee agreed that such owner might have longer time to complete the work. Davison v. Campbell, 28 App. 688.
If an allotment against land for the construction of a drain is put on the tax duplicate and the land is sold thereunder and the purchaser fails to obtain title to the land, he has a lien on the land for the purchase money and interest the same as purchasers under void tax deeds. Skelton v. Sharp, 161 Ind. 383.
The statute providing that upon petition of interested parties new allotments for the repair of a drain may be made after two years from the time of an allotment applies only when there has been a previous legal allotment. Hille v. Neale, 32 App. 341.
5632. Tiling or change - Petition - Proceedings.-11. Should the owner of any land, or any corporation, affected by the construction, change, improvement or extension of any work of drainage under this or any former law of this state, be of opinion that such work, or any part of it, may be more economically kept in repair, or may be made more efficient for its purpose, by tiling and covering; by removing tile and making the drain open; by changing the size or kind of tile; by deepening or widening the drain; by changing the line of the drain or extending its length; or by making any other change in the work as originally constructed, such land owner or corporation may apply for such change, improvement or extension by filing a petition therefor with the circuit or superior court, or with the board of commissioners, as the case may be, of the county in which the proceedings were had for the construction of such work. The form and contents of such petition and other provisions in relation thereto shall, so far as applicable, be the same as provided in section two of this act for the original petition for the construction of the work; and the provisions of section three, as to notice and hearing of such petition or remonstrance thereto, reference thereof to the drainage commissioners, preliminary report of such commissioners and action. thereon; the provisions of section four as to the final report of the drainage commissioners, exceptions thereto and action on such exceptions and on the report; and the provisions of section five and section seven as to the duties of the superintendent of construction, shall, so far as applicable, be the same in case of such change or improvement in such work of drainage as in case of the original construction of the work; and if such work of change or improvement is done under the direction of the circuit or superior court, and the total cost exceed five thousand dollars, the provisions of section six in relation to the issue of drainage bonds shall also apply. In all other respects the provisions of this act in relation to the construction of any work of drainage shall, so far as applicable,
govern in the making of any such change, improvement or extension of any work constructed under this act or under any former drainage law of this state.
See note to section 5649, Burns' R. S. 1901.
5633. Drains on state lines.-12. Whenever it may be desirable to construct, widen, deepen, straighten or change any ditch, drain or water course lying on, along, across or near to the state line between the state of Indiana and any adjoining state, or whenever it may be desirable to construct, repair or improve any work of drainage as provided for in this act, which ditch, drain, water course or other work of drainage can not be constructed, repaired or improved in the best manner without affecting lands in such adjoining state, the boards of commissioners and other proper officers of the several counties in this state, so adjoining another state, shall have authority to join with the proper officers of such adjacent counties of other states in the construction, widening, deepening, straightening, repairing or improving of any such ditch, drain, water course or other work of drainage. Such commissioners of such counties in this state are given powers jointly to enter into contracts with the proper officers of such counties in adjoining states to construct, repair, or improve any such work of drainage, each to pay such proportion of the costs and expenses of the work as by the contracting officials shall be deemed just. Such work of drainage shall be made on petition of land owners or corporations as provided for in this act in relation to other works of drainage; and all other provisions of this act so far as applicable shall govern the commissioners and other officers of this state in relation to such joint work of drainage, provided such adjoining county or counties in other states shall pay their proper share of necessary costs and expenses.
5634. Proceedings as to adjoining state.-13. Whenever any land easements or other property located in an adjoining state and bordering on any stream or water course, shall be injuriously affected over and above any direct benefits it will receive by such work or drainage or the diversion in whole or in part, of the water from any such stream or water course, the owner may at any time before or within thirty days after being notified in writing of such proceedings make written application to said court or board of commissioners, as the case may be, setting forth therein all pertinent facts entitling him to the relief therein sought, to have his said damages ascertained and fixed and the same shall be ascertained and fixed as upon remonstrance or exception by the owner of lands, easements of property situate in this state and affected by such work. Such court or board of commissioners having jurisdiction of such proceedings, shall have power to ascertain and fix such damages, if any, and charge and tax the same up in said proceedings, against such work, and the land, easements and other property benefited thereby as a part of the costs of construction thereof to be paid as other costs of construction or repair are paid. Said notice
to the owner shall be in writing, setting forth the title of the proceedings, the county, state and the name of the court or board of commissioners before which the same were had or are pending, a definite reference to the act under which such proceedings are had, the nature of such proceedings, together with a statement that such owner may have his said damages, if any, ascertained and fixed by said board or court, as the case may be, upon due application made under such act. Said notice may be signed by any person petitioning for said work or by any one of said drainage commissioners, and may be served on any such owner at any place either within or without this state wherever he may be found, or by leaving a true, full and complete copy of such notice at the last usual place of residence of such owner. Service may be had upon any corporation by serving said notice upon any one of its agents in this state. If there be none such then upon any agent of such corporation at any place without this state. Said notice may be served by any party interested in said proceedings by his agent or attorney and proof of such service shall be made by the affidavit of the person making the same. Whenever said notice so served shall be filed in such proceedings or copied at length together with such proof of service, in the order book of said court or board, as the case may be, the same or the record thereof shall be conclusive evidence of such service for all purposes wherever necessary or the same may be in question. Any such owner so notified shall have no right, after said period of thirty days shall have expired, to claim any damages on account of said proceedings or work or resulting therefrom, and he shall not be permitted to bring, maintain or prosecute in any of the courts of this state any suit or proceedings to enjoin such proceedings or work nor to in any manner interfere therewith nor to affect or interfere with the drainage accomplished thereby nor with any proceedings or work to continue or perpetuate the same. Should any owner of any such lands, easements or property bring or prosecute at any time any proceedings or suit either at law or in chancery against any person or persons, either individually or in their official capacity, interested in or carrying out or perpetuating said work, drainage or diversion, in the United States circuit court for the district of Indiana, for damages growing out of said work or drainage or the diversion of the waters of a stream or water course, or to enjoin the same, or remove any suit or proceedings for such drainage or diversion from any court of this state to said United States court, and said court should in the exercise of its discretion and powers refuse to arrest, prevent, enjoin, or interfere with said proceedings to drain or divert or the consummation and perfection thereof, but should instead ascertain and fix the damages of any such owners claiming the same in any such suit or proceedings, the damages SO ascertained and fixed by said United States court shall be taxed up and charged in such proceedings for drainage or diversion by said drainage commissioner as a part of the cost of construction, repair or maintenance of said work, drainage