majority">Morris, J.

Appellant was charged, by information, with an alleged trespass on the lands of one Huffman, in violation of §2280 Burns 1908, Acts 1905 p. 584, §388. A trial by the court resulted in a judgment of conviction. Appellant’s motion for a new trial assigned the insufficiency of the evidence to support the finding. Subd. 9, §2158 Burns 1908, Acts 1905 p. 584, §282. Overruling this motion is here assailed as erroneous. There is no conflict in the evidence, and the facts are as follows: For years, Huffman has owned a 39-acre tract of land, and appellant has owned a 41-acre tract adjoining it on the north. In 1910, a public tile drain, petitioned for by Huffman and others, was constructed under the provisions of the drainage act of 1907 (Acts 1907 p. 508, §6140 et seq. Burns 1908). This drain was constructed through Huffman’s tract, entering it near the northwest cor*196ner thereof, and extending through it in a southeasterly course, without touching appellant’s tract. On the line dividing the two tracts was a partition fence. A little north of the fence was a small pond, three rods in diameter1, on appellant’s land. This was surrounded by a small tract of low land extending across the dividing line on Huffman’s tract. Between this low land and the .public drain, there was a small elevation. Before the construction of the public ditch, there was no practical outlet for the drainage of the little pond. One acre of appellant’s tract (evidently that embracing the pond) was assessed as specially benefited by the construction of the public drain. In March, 1911, appellant commenced to dig a small tile ditch from the pond on his land to the public drain. The course of this ditch was in practically a straight line from the pond to the nearest point of contact with the public drain. Appellant entered on Huffman’s tract, and partially constructed the lateral, after Huffman had forbidden him so to do. The result was this prosecution.

Appellant contends that he had a lawful right to enter on Huffman’s land to construct the ditch from the public drain to his land that was assessed as specially benefiled, regardless of the consent of Huffman. In our opinion this contention should prevail. The Attorney-General calls our attention to Drake v. Schoenstedt (1897), 149 Ind. 90, 48 N. E. 629. That case in nowise conflicts with our holding here, for there while the appellee had only a tract of two acres that was estimated as benefited, he was attempting to collect water from another large tract of land and empty it into the public drain. Here, appellant was not attempting to burden the public drain with water collected from land not estimated as benefited. He was simply exercising his right to ditch his land that was assessed for the construction of the public drain. Unless it be ¿ssumed that an owner may lawfully construct lateral ditches draining his land assessed for the construction of a public drain, it would *197be difficult in most cases to show any special benefits to land not touched .by a proposed system of public drainage. Lipes v. Hand (1885), 104 Ind. 503, 508, 1 N. E. 871, 4 N. E. 160; Culbertson v. Knight (1899), 152 Ind. 121, 52 N. E. 700.

Note. — Reported in 102 N. B. S30. See, also, 38 Cyc. 1183; 14 Cyc. 1055.

There was no evidence to sustain the charge contained in the information, and the court erred in overruling appellant’s motion for a new trial. Judgment reversed, with instructions to sustain said motion.

Citation profile

Relationships

How this case has been treated — in progress