Imagens das páginas

footing that it still exists for other pur- | election shall be made by express words or poses, and also treat such renunciation as by act. And consequently we agree with an immediate breach. If he adopts the re- what seems to be the opinion of all the nunciation, the contract is at an end, except judges below, that, if it can be shown that for the purposes of the action for such the London Pianoforte Company have at wrongful renunciation. If he does not wish any time after knowledge of the fraud, to do so, he must wait for the arrival of the either by express words or by unequivocal time when, in the ordinary course, a cause acts, affirmed the contract, their election has of action on the contract would arise. He been determined forever." must elect which course he will pursue."

The principle of the finality of an election once made is applicable, we think, to the present case.

Now, the plaintiff was not bound by the action of the corporation in adopting the by-law of 1900 and putting it into effect. We see no ground upon which the plainHis contract remained unaffected. But he tiff can avoid the election he made in Ocacquired the right of electing either to treat tober, 1900. We cannot agree that it was the attempted reduction of his certificate as "a hasty and ill-advised decision." It a breach of the contract and ground for seems to us to have been intelligently and making an end of it with an immediate deliberately made upon full knowledge of all right of action for the recovery of damages. the facts. Moreover, the plaintiff rested or else to hold fast to his contract. The content with his election for two years and plaintiff chose the latter course. He elected five months. His election to keep the conto keep the contract alive, and did so. The tract alive is not now open to reconsideracourt below did not doubt that the plaintiff tion. Nor can we give our assent to the had elected to keep the contract alive. In proposition urged by the defendant in error its opinion the court states the question that the breach of contract was a continuing here to be "the right of a member of the de- one, and therefore that the plaintiff could fendant order to rescind his contract after rescind the contract at any time up to the having once elected not to rescind." And time set for performance. All the grounds the court held that the plaintiff was not warranting rescission existed and were comprecluded, even after the lapse of two years plete at the time the plaintiff made his and five months, from making a second elec-original election. The right of the plaintiff tion to rescind the contract. To this view we cannot assent. In the circumstances we think it was not open to the plaintiff to make a second election, reversing his former Clough v. London & N. W. R. Co. L. R. 7 Exch. 26, 34. Speaking of the right of election to avoid a sale of personalty, the court there said: "And we further agree that the contract continues valid till the party defrauded has determined his election by avoiding it. And, as is stated in Com. Dig. Election, c. 2, if a man once determines his election it shall be determined forever; and, as is also stated in Com. Dig. Election, c. 1, the determination of a man's


to abrogate the contract was gone forever when he elected not to rescind. His exercise of the right of election fixed the contractual relations of the parties. Those relations were not thereafter subject to change at the mere pleasure of the plaintiff.

The views we have above expressed require us to render the judgment following: The judgment of the Circuit Court is reversed, and the cause is remanded to that court, with direction to enter judgment in favor of the defendant non obstante veredicto.

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RROR to the Circuit Court for Madi- | 155), passed April 15, 1902. Among other son County to review a judgment reversing a judgment of the Court of Common Pleas in favor of defendants in a suit to enjoin proceedings for the cleansing of a draining ditch. Reversed.

Statement by Price, J.:

The plaintiffs below filed their petition praying for an injunction against the plaintiffs in error, who were proceeding to make an assessment on the lands of the plaintiffs and others to pay for the cleaning out of a certain ditch which had been established in 1886. The surveyor and auditor were acting under the provisions of § 3 of an act of the general assembly entitled "An Act to Provide for the Cleaning Out and Keeping in Repair of Public Ditches, Drains, and Water Courses, et cet." (95 Ohio Laws, p. by the provisions of statutes. It is not desirable to set these provisions out, because not only are they easy of access in the statute books, but consultation of the latest edition of the statute book will insure the securing of the provisions in force, which could not be assured in any other way. The construction which the courts have given to the statutes may, however. be helpful, not only in determining what the present law is, but also in understanding the meaning of terms in future statutes; and therefore a short review of the decisions will be attempted. The adoption of plans for the improvement of lands by concerted action under legislative authority for its drainage is of comparatively recent origin, so that the body of case law is somewhat limited, and many of the problems have not yet been solved.

Right of landowner to compel repair.

After a landowner has been assessed, sometimes for a large amount, for the construction of a drainage system on the theory that his property will be benefited by the improvement he is usually deeply interested in having the system maintained in a working condition; and the question arises, What right has he to compel the officials charged with the care of the improvement to perform their duty? The statutes usually contain an express provision upon this subject; but it has been held that a landowner who has been assessed for the construction and repair of a drainage ditch cannot compel the commissioners, by mandamus, to levy an assessment to repair a lateral which has become obstructed so that his land is not drained, where they have no funds on hand to devote to that purpose, and the statute authorizes them, under such circumstances, to petition the court for the making of an assessment; since, the matter being within their discretion, it cannot be controlled by mandamus, unless it shall be made to appear that their refusal is arbitrary and amounts to a fraud, or their motive is to accomplish their own personal or selfish ends. Bromwell v. Flowers (Ill.) 75 N. E. 467. The court. however, in that case, because of failure to state the contrary in the petition, assumed that the lateral ditches were in that district kept In repair by the landowners individually benefited thereby, and, assuming that to be true,

claims which are noticed in the opinion, it is alleged that said section conflicts with § 19 of article 1 of our state Constitution. The averments of the petition were met by an answer, and the case was heard in the court of common pleas on the evidence, and that court found for the defendants, the auditor and surveyor. On appeal the case was again heard in the circuit court, where a perpetual injunction was granted on the ground that said § 3 is unconstitutional. Error is prosecuted in this court to obtain a reversal of the judgment of the circuit court.

Messrs. C. R. Hornbeck and T. J. Duncan, for plaintiffs in error:

The assessing of property for the purpose of public improvement, such as the it would be unjust to compel others to contribute towards the repair of the lateral through the petitioner's land.

A mandamus will not lie to compel a township trustee to remove obstructions from a drain, where the provisions of the statute making it his duty to. repair and remove obstructions from ditches or drains theretofore obstructed are unconstitutional and void. Tyler v. State, 83 Ind. 563.

A landowner, having the right by law to enter upon the lands of another to remove ob structions inadvertently or negligently placed in a legally established ditch by such other for temporary purposes which are easily removed, cannot stand by and await the ruin of his crops, and hold the other liable therefor, in the absence of evidence that the obstructions were wilfully placed therein for the purpose of creating obstructions. Chambers v. Kyle, 87 Ind. 83.

Action by officials.

The duty of looking after the repair should be, and usually is, imposed by statute upon the officials to whose care the improvement has been committed, either upon their own initiative or upon petition by interested property owners. The repair is usually regarded as a matter of routine duty, and does not require the complicated processes necessary for the original establishment of the ditch.

The law contemplates, in providing the easement of a drain, that it will require that it be kept in repair in order to preserve its usefulness, and does not, in requiring notice to adjoining owners when the ditch is originally opened, demand that notice of its repair or reopening shall be given in the same manner in order to validate assessment for such repair. Yeomans v. Riddle, 84 Iowa, 147, 50 N. W. 886.

The propriety of having an existing drain cleaned out does not necessarily need to be de termined by commissioners or jurors, unless involving more than cleansing. Where a drain has once been legally made there is a presump tion that, if necessary at all, it should be kept in reasonable order. Barker v. Vernon Twp. 63 Mich. 516. 30 N. W. 175.

A provision in a drainage law authorizing township trustees to repair and remove obstructions from public ditches is not unconstitutional

constructing or cleaning of ditches, or removing obstructions therefrom, is not repugnant to any provision of the Constitution.

Hill v. Higdon, 5 Ohio St. 243, 67 Am. Dec. 289; Scovill v. Cleveland, 1 Ohio St. 126; Reeves v. Wood County, 8 Ohio St. 333; Thompson v. Wood County, 11 Ohio St. 678; Chamberlain v. Cleveland, 34 Ohio St. 551; Lima v. Lima Cemetery Asso. 42 Ohio St. 128, 51 Am. Rep. 8C9.

It is not the province of a court to declare laws unconstitutional because they are unwise.

Cincinnati, W. & Z. R. Co. v. Clinton County, 1 Ohio St. 78; Black, Constr. & Interpretation of Laws, p. 93; Curryer v. Merrill, 25 Minn. 1, 33 Am. Rep. 450.

Nonresident owners cannot be counted either for or against the improvement.

because it vests in those officials a discretionary authority to determine when repairs are necessary without requiring notice to be given of the intention to order the repairs. Weaver Templin, 113 Ind. 298, 14 N. E. 600.


A provision in a drainage law authorizing township trustees to repair and remove obstructions from public ditches, and apportion and assess the cost thereof upon the lands which will be benefited according as, in their judgment, such benefits accrue, and requiring notice to be given of the assessment, and permitting any person aggrieved thereby to appeal, is constitutional and valid, although it limits the question to be tried on appeal to the cost of such repairs or removals and what amount thereof should be assessed on each tract of land affected. Trimble v. McGee, 112 Ind. 307, 14 N. E. 83; Wisman v. McGee, 112 Ind. 600, 14 N. E. 375.

In repairing, reopening, and deepening county drainage ditches the board of supervisors need not take the proceedings required by statute for the original construction of the ditch, where the statute provides a scheme for such repairs without taking such steps. Yeomans v. Riddle, 84 Iowa, 147, 50 N. W. 886.

The courts have no power to enjoin a county surveyor from repairing a public ditch by cleaning it out to its full dimensions, where he was served by a landowner interested with the statutory notice to make such repairs, and exercised the discretion committed to him by the law by determining that it was his duty to make such repairs, in the absence of a showing that he proposed to exceed his authority by doing some thing beyond the mere restoration of the ditch to its original dimensions. Amoss v. Lassell, 122 Ind. 36, 23 N. E. 525.

The land of a single owner, through which is constructed a ditch proposed to be cleaned and widened, is "adjacent" thereto within the meaning of a statute requiring, as a condition precedent to the exercising of the power to clean and widen, the filing of a petition by "one or more" persons owning lands adjacent to the ditch to be cleaned. Kent v. Perkins, 36 Ohio St. 639.

What is repair?

Burgett v. Norris, 25 Ohio St. 368; Hays v. Jones, 27 Ohio St. 218; Makemson v. Kauffman, 35 Ohio St. 444; Corry v. Gaynor, 22 Ohio St. 584; Cincinnati, M. & L. Traction Co. v. Felix, 25 Ohio C. C. 393; Snell v. Cincinnati Street R. Co. 60 Ohio St. 256, 54 N. E. 270.

Messrs. Murray & Emery, for defendants in error:

A statute which attempts to give those resident landowners along the line of the ditch the right attempted to be given by § 3, and precludes nonresidents from exercising the same rights; and which also permits a resident landowner to impose the burden, as in this case, of a tax or assessment amounting to a large sum upon him, -is an unjust and unfair discrimination between persons of the same class.

State v. Gardner, 58 Ohio St. 599, 41

statute authorizing and controlling the repair of ditches, the proceeding must be limited to a maintenance of the ditch in the condition in which the construction proceedings had left it. Repair proceedings cannot be used to complete work which had been left incomplete, nor to enlarge work which was inadequate as originally constructed.

The statutory power given county surveyors to keep ditches "in repair to the full dimension as to width and depth as required in the original specifications" must be confined strictly to keeping ditches in repair to those dimensions, and does not authorize the enlargement thereof beyond the original dimensions. Fries v. Brier, 111 Ind. 65, 11 N. E. 958.

A county surveyor has no power, under a statute authorizing him to repair public ditches to the full dimensions as required in the original specifications, to donar therefn an construct a ditch wider and deeper than the original ditch was constructed, or to complete an incomplete oue, or to correct what he deems to be faults in the original construction; nor can he justify his acts, in an action to set aside the assessment levied therefor, on the ground that collaterally attack that proceeding by proof part of the original proceeding was void, or that those who constructed the original ditch did not dig it as deep as the specifications reKomack v. Hobbs (Ind.) 32 N. E. 307. quired. The statutory authority of township trustees to repair and remove obstructions from public ditches is limited to a restoration of the ditch as nearly as practicable to its original condition, and does not authorize the construction of a new ditch or the enlargement and improvement of an existing one, except in so far as such repairs or removals necessarily enlarge and improve it; and an assessment levied on land for the cost of such unauthorized work is invalid and unenforceable. Weaver v. Templin, 113 Ind. 298, 14 N. E. 600.

Deepening a drainage ditch by dredging for a distance of nearly 20 miles at an expense of nearly $25,000 is not a repair of the ditch; and it is immaterial that a portion of the deepening is rendered necessary by the fact that the bottom of the open ditch has become filled with

In order to come within the provisions of the mud so as to be above the level of the laterals

son who makes the finding of the necessity; and the affidavit itself is such a finding. It takes from the proper administrative officers the power to act in local improve

L. R. A. 689, 65 Am. St. Rep. 785, 51 N. | makes the affidavit shall be the only perE. 136; Palmer v. Tingle, 55 Ohio St. 423. 45 N. E. 313; Harmon v. State, 66 Ohio St. 249, 58 L. R. A. 618, 64 N. E. 117; State v. Gravett, 65 Ohio St. 289, 55 L. R. A. 791, 87 Am. St. Rep. 605, 62 N. E. 325; Statements, and confers this power upon a priex rel. Schwartz v. Ferris, 53 Ohio St. 314, 30 L. R. A. 218, 41 N. E. 579; Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 29 L. R. A. 386, 53 Am. St. Rep. 622, 41 N. E. 263; Williams v. Donough, 65 Ohio St. 499, 56 L. R. A. 766, 63 N. E. 84; State ex rel. McKell v. Robins, 71 Ohio St. 273, 73 N. E. 470.

No tax or assessment can be levied, except for a public purpose.

2 Dill. Mun. Corp. § 587; Blue v. Wentz, 54 Ohio St. 247, 43 N. E. 493; Reeves v. Wood County, 8 Ohio St. 333.

vate individual, without appeal or redress to the persons interested.

Harmon v. State, 66 Ohio St. 249, 58 L. R. A. 618, 64 N. E. 117; State ex rel. Broerman v. Hamilton County, 54 Ohio St. 333, 43 N. E. 587.

The legislature has not the power to confer upon the auditor the duties imposed by this act.

Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; Hulse v. State, 35 Ohio St. 421; State ex rel. Broerman v. Hamilton County, 54

The act contemplates that the person who | Ohio St. 333, 43 N. E. 587. which drain into it.

People ex rel. Munsterman v. McDougal, 205 111, 636, 69 N. E. 95.

Under a petition to clean out a ditch, trustees have no power to make an order for a new ditch, or deepen or widen one already constructed. Deuyer v. Shonert, 1 Ohio C. C. 73.

An assessment on land for the cost of repairs to a public ditch cannot be sustained for excavating and repairing a ditch on a different line from that designated in the original specifi cations, where the surveyor had no authority to expend money for other purposes, or for constructing and excavating a ditch in another place from the line upon which it was originally located. Taylor v. Brown, 127 Ind. 293, 26 N. E. 822.

There can be no enlargement so as to take additional land without making additional com pensation for the property so taken. Owensboro v. Brocking, 27 Ky. L. Rep. 1086, 87 S. W. 1086.

But a landowner cannot maintain a collateral suit to be relieved from an assessment for the repair of a public ditch on the ground that the township trustee performing the work exceeded his statutory authority by proceeding, under the guise of repairing, to widen and deepen the ditch beyond its original dimensions, although such a defense might have defeated the assessment, at least to the extent of the excess of cost created by such unauthorized work,-by appealing from the assessment. Dunkle v. Herron, 115 Ind. 470, 18 N. E. 12.

to the original plans and specifications, in the absence of an averment that the ditch has never been accepted. where seven years have elapsed since its construction, after which lapse of time it will be presumed that the work was duly accepted as required by law, and that, in making the repairs, the surveyor is acting within his authority.

436, 24 N. E. 146.

Bunnell v. Peet, 123 Ind.

An assessment on land for the repair of a public ditch by a county surveyor under a statute making it his duty to repair such ditches is not void because the ditch was never completed according to the original specifications. since the propriety of making such repairs is committed by the statute to the discretion of that official, and his decision is final. Kirkpatrick v. Taylor, 118 Ind. 329, 21 N. E. 20.

So the fact that the ditch was incidentally en larged in the process of repair will not render the proceeding void in toto so that no assessment can be made for the work; but the assessment will be upheld so far as necessary to meet the cost of legitimate repairs.

An assessment for the repair of a public ditch is not void in toto because the county surveyor excceded his statutory authority by making the ditch larger than the original specifications required, but is void only to the extent of the cost of the unauthorized work. Romack v. Hobbs. 13 Ind. App. 138, 41 N. E. 391.

An assessment for cleaning out and widening a drain is not invalid because the contractor

But the fact that the ditch was never fully employed to do the work in accordance with a completed will not prevent a repair of the part that was finished.

The county surveyor, whose duty it is to repair public ditches, has jurisdiction to repair that part of a public ditch completed, although the entire ditch is not yet finished, where the ditch was established under a law not requir ing the appointment of an officer to supervise the construction and report its completion, and who retains control thereof until completed. Artman v. Wynkoop, 132 Ind. 17, 31 N. E. 468.

A county surveyor who is not authorized to repair a public ditch until "after the construction of such work" will not be enjoined from repairing such a ditch on the ground that the same has never been constructed according

diagram of the existing drain widened it beyond its original width. Angell v. Cortright, 111 Mich. 223, 69 N. W. 486.

The fact that a county surveyor exceeded his authority to repair a public ditch by enlarging it beyond its original dimensions will not relieve landowners from liability to pay for benefits received by the doing of that part of the work within his jurisdiction. Scott v. Stringley, 132 Ind. 378, 31 N. E. 953.

And, under proper proceedings, the ditch may be enlarged.

A citation in a proceeding to widen a ditch need not be in the exact language of the statute. where it contains the substance of its requirement, and the party upon whom it is served is

Price, J., delivered the opinion of the for they present issues of fact which are court:

The evidence heard in the circuit court has not been brought into the record by bill of exceptions, and that court made no finding of facts. Consequently we have nothing to review in reference to the evidence admitted on the issues joined by the pleadings. According to the judgment entry, the lower court granted a perpetual injunction against the county auditor and county surveyor on the sole ground that § 3 of an act of the general assembly passed on the 15th day of April, 1902, found in 95 Ohio Laws, p. 155, under which the officers were proceeding, is unconstitutional, and that is the only question for determination here. In this state of the record, we have nothing to do with mary averments of the petition and their denial by the answer,

not misled. Wolpert v. Newcomb, 106 Mich. 357, 64 N. W. 326.

One properly served with a citation in a proceeding to widen a ditch cannot raise the objec tion of a defective service upon others who have released the right of way, and thereby waived all irregularities. Ibid.

A township drain constructed as one continuous drain by the joint action of the township commissioners of the two townships constitutes one drain, and but a single proceeding is necessary for widening and deepening it. man v. Monroe County Probate Judge, 82 Mich. 562, 48 N. W. 780.


A landowner who is Injured by the widening. deepening, and straightening of a ditch exist ing upon his property is not entitled to question the validity of the proceedings by writ of certiorari. Wolpert v. Newcomb, 106 Mich. 357, 64 N. W. 320.

Who to bear cost of repair.

The legislature may direct payment of the cost of maintaining the ditch out of the public funds, may require each landowner to keep a section of the ditch in repair, or may meet the cost by assessment upon property benefited.

The statutory duty imposed upon township trustecs to keep drains and ditches in repair and free from obstructions, and pay for the same out of the general township funds, is not unconstitutional, but is a valid and effectual provision, notwithstanding a further provision in the statute, that, in order to reimburse that fund, he is authorized to apportion and assess the cost thereof upon the lands benefited, has been declared unconstitutional and void be cause no provision is made for a hearing by the landowners affected. Ingerman v. Noblesville Twp. 90 Ind. 393.

That part of an act making it the duty of county surveyors to keep public ditches in repair at public expense, which requires the issuing of warrants upon the county treasurer for the amount of such repairs, is a sufficient appropriation made by law within the meaning of the constitutional provision prohibiting the paying out of money from the county treasury except in pursuance of an appropriation made by law. State ex rel. French v. Johnson, 105 Ind. 463, 5 N. E. 553.

not before us. Among these are questions as to the fairness of the apportionment of the costs and expenses of cleaning out the ditch, and whether it was for a public purpose, or merely for the private benefit of certain named persons who asked for the improvement.

In taking up the question of constitutional law, a preliminary observation will assist in understanding our subject. The general provisions of our statutes for the location and construction of ditches, drains, and water courses, with some changes and variations, have been in operation for many years. It is declared by the pleadings that the ditch about to be cleaned out by virtue of the proceedings enjoined was established in the year 1886, and that it was constructed during that year. It now deserves the

Tile drains constructed in pursuance of a drainage law are included within a statute making it the duty of certain public officers to see that "all drains that may have been, or may hereafter be, constructed under and by virtue of any law in this state" are kept in repair by landowners to whom portions thereof have been allotted for that purpose, and to repair the same at their expense upon their failure so to do. Cochran v. White, 151 Ind. 435, 51 N. E. 723.

A township trustee, whose duty it is to see that public ditches are kept in repair so as to answer their purpose, may require a landowner to take up a tile drain on that portion thereof allotted to him to keep in repair, and relay the tiles so as to be level with the grade line established by the original specifications to correct that fault in the original construction. where the ditch failed to answer its purpose to drain all the land assessed therefor by reason of such fault, although the ditch was accepted as complete according to the specifications. bid.

Under an award of commissioners under an

enclosure act requiring the owners of land over which a drain passed to cleanse and keep it of sufficient width and depth to carry off the water, such owners are not required to keep the drain of sufficient capacity to carry off water afterwards drained into it by the opening of a sewer or other drain. Sharpe v. Hancock, 7 Mann. & G. 354, 8 Scott, N. R. 46.

An allotment for the repair of a drainage ditch, made without giving the notice and providing an opportunity for remonstrances required by statute, is void. Hille v. Neale, 32 Ind. App. 341, 69 N. E. 713.


Faliure to give personal notice to some landowners of allotments of portions of a public ditch to be kept in repair by them, as required by law, does not invalidate the allotment as to others properly served. Hendricks County v. Trotter, 19 Ind. App. 626, 49 N. E. 976.

A failure to give personal notice to landowners of ditch allotments as required by statute, renders the allotments void; and a mere voluntary acquiescence therein for the time being cannot bind the landowners for the future. Ibid.; Hille v. Neale, 32 Ind. App. 341, 69 N. E. 713.

But the allotment of a portion of a ditch te

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