Public-domain · open source
OpenJurist

64 Ind. 209

Bate v. Sheets

Indiana Supreme Court

Decided November 15, 1878

Indiana Supreme Court · decided 1878-11-15

<p>Ditches and Drains. — Act of 1867. — Action to Collect Assessment. — Record. —Evidence.—In an action to recover an assessment made under the drainage act of March 11th, 1867, 2 R. S. 1876, p. 684, the record of the petition, upon being properly identified and on proof of the loss of the petition, is competent evidence.</p> <p>Same. — Act of 1875. — Repeal of Statute. — The drainage act of March 9th, 1875, 1 R. S. 1876, p. 428, repeals the act of March 11th, 1867, only so far as their provisions conflict.</p> <p>Same. — Evidence. — Section 4 of Act of 1875. — By section 4 of the act of 1875, it is necessary to establish, even in an action to recover an assessment made under the act of 1867, that the evidence adduced before the board of commissioners, showed, and that the board found, the proposed drain to be necessary and conducive to the public health, convenience or welfare, or of public benefit or utility ; otherwise the defendant is entitled to recover.</p> <p>Same. — Section 9 of Act of 1867. — Personal Judgment. — Lien.—Section 9 of the act of 1867 was not re-enacted or changed by the act of 1875, and under it the plaintiff in such action is entitled to recover, if at all, a personal Judgment against the defendant, if a resident, as well as a lien against the land.</p> <p>Same. — Effect of Act of 1875 on Proceeding Pending Under Act of 1867.— A proceeding for the construction of a drain, under the act of 1867, which was in fieri on the talcing effect of the act of 1875, must thereafter have conformed to the requirements' of the latter act, where they conflict with those of the previous act.</p> <p>Same,. — Contract.-—Remedy.—Vested Right. — An assessment under the act of 1867 was not a contract, but a remedy, in which there was no vested right.</p>

Relies on Bryer v. Chase · Board of Comm'rs v. Ruckman · McKinsey v. Bowman

Good law ✅— No negative treatment on recordhow we know

Decided 1878-11-15

How this case has been cited

Cited by 9 later decisions — most recently September 1917

9 state decisions

4018781880189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Petition for a rehearing.

Biddle, J.

¶2The appellee seems to think, that, because these proceedings were commenced under the act of March 11th, 1867, and the assessment of benefits made against the appellant before the act of March 9th, 1875, took effect, therefore he has a vested right to collect the assessment under the former act. We are of a different opinion.

¶3There is no vested right in a remedy. The assessment is not a contract made by the agreement of the appellant. It is a right given to the appellee by statute, which, being against common right, must he construed strictly, and the *213facts must prove his right according to the statute in force at the time he seeks his remedy, or he can not recover.

¶4The trial was had in this ease, in June, 1876, nearly one year after the act of March 9th, 1875, went into force, and it is very clear, that the facts proved at the trial do not authorize a recovery under the latter act, because they do not show that the drain is necessary and conducive to public health, convenience or welfare, or. of public benefit or utility.

¶5It was necessary that all proceedings commeneed under the act of March 11th, 1867, and being in fieri at the time the act of March 9th, 1875, went info effect, should subsequently conform to the latter act in -all respects wherein the two acts differed. This not being the case in the proceeding before us, the appellee was not entitled to recover. Stephenson v. Doe, 8 Blackf. 508 ; Roush v. Morrison, 47 Ind. 414; The Board of Comm’rs, etc., v. Ruckman, 57 Ind. 96 ; McKinsey v. Bowman, 58 Ind. 88.

¶6The petition for a rehearing is overruled.

/64/ind/209 · .json · Public domain