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parts of days, to be paid out of any money in the county treasury not otherwise appropriated, upon a report on oath filed with the county auditor.

7666. Work, when done - Penalty. § 6. After such allotments have been made, it shall be the duty of the owner of each tract of land, and of each corporate road and railroad, and the supervisor of the road district in which said allotment is located, to clean out and repair the portion of said work so allotted to such tract of land, or to such road or railroad, or to such township, between the first days of September and November of each and every year thereafter, and, upon failure so to do, such owner, or such road or railroad, shall be liable to a penalty of one dollar for every day such work remains unfinished after said first day of November, to be recovered by the trustee of the township in a suit therefor before any justice of the peace of the township where such owner resides, or through which such road or railroad runs. Any such penalties recovered shall be paid in to the general township fund. [See § 7674.

7667. Trustee's duties. § 7. It shall be the duty of such township trustee to procure a transcript of the surveyor's record of allotments of ditches in his township, and, as soon after the first day of November of each year as is practicable, to examine the ditches in his township, and if he find that any such owner, corporate road or railroad has failed to clean and repair the portion of such ditch or drain allotted to the lands of such owner, or to such corporate road or railroad, such trustee shall, at once, cause such portion to be cleaned out and repaired at the cost of such owner, or such corporate road or railroad, and may certify such expense to the auditor of the county, who shall place the same, together with the fees of such trustee, on the duplicate as an assessment upon the land of such owner, or upon the right of way, property and franchises of such corporate road or railroad, and the same shall be a lien thereon, and collected as other taxes are collected, and, when collected, shall be paid over to said trustee; or such trustee may recover such expense and his fees before any justice of the peace of the township where such owner resides, or through which said road or railroad runs, or he may bring a suit in the circuit or superior court of the county to collect such expense and fees and enforce and foreclose the lien upon such land, or upon such road or railroad, and in either of such suits such trustee shall, also, recover reasonable attorney's fees, and the judgment shall be without relief from valuation or appraisement laws. [See § 7675.

7668. Cost of removing obstructions-Supervisor's duty. § 8. If the portion or any part thereof of such ditch or drain so allotted to the land of any owner, or to any corporate road or railroad, becomes filled or obstructed by the negligence of any owner or occupant of any land, or by cattle, horses, hogs or other stock of such owner or occupant, it shall be the duty of such owner or occupant to remove all such obstructions or fillings, at his own expense, before the 31st day of August of each year, and upon failure so to do the owner of the land or the corporate road or railroad to which such portion was allotted may recover the cost of removing such filling or obstruction from such owner or occupant in any court of competent jurisdiction, with attorney's fees. In any township where animals are permitted to run at large upon the highways, it shall be the duty of the supervisors of the various road districts in the township to remove all fillings and obstructions caused by such animals from that portion of such

ditcnes or drains as may be located along or across such highways in their respective districts.

7669. Trustee's per diem-Agent, appointment of. §9. For all work and labor done by the trustee under this act he shall receive two dollars per day for actual services, and at the same rates for parts of days for the work and labor in causing to be cleaned out any portion or allotment which has not been cleaned out or repaired before the first day of September of each year, as hereinbefore provided, which shall be charged to the owner of the land or to the corporate road or railroad on account of which allotment was made and collected as a part of the costs and expenses of such work, and the trustee may, in performing the duties required by this act, if necessary, employ an agent.

7670. Supervisor and trustee's bonds, liability on- Penalty. 10. If any township trustee or road supervisor shall fail to perform any work required of him by this act, after ten days' notice to him in writing by any person interested, he shall be liable with his sureties, on his official bond, for all damages caused by such failure to perform his duty, to be recovered by the person or persons damaged, and he shall also be deemed guilty of a misdemeanor and, upon conviction thereof, be fined in any sum not exceeding fifty dollars.

7671. Act, when not apply. § 11. This act shall not apply to any ditch or drain which passes through or extends in to two or more counties. All such ditches and drains shall be under the care and supervision of the county surveyor, and shall be kept in repair according to the laws now in force in respect thereto.

7672. New allotment - Reapportionment - Costs. § 12. If at any time after two years from time any allotment of any ditch is made under this act a petition signed by one-half of the parties interested in said allotment, stating that said allotment is unfair, and asking for a new allotment, is filed with the county surveyor, the said county surveyor shall proceed to examine said ditch and if he find the allotment to be unfair or unjust he shall proceed to reapportion said ditch as though no previous allotment had been made, but if he find no cause for the complaint he shall so report to the county auditor, who shall tax all costs in the proceedings to the persons signing said petition, and said costs shall be collected as other taxes are collected.

7673. Repealing clause. § 13. All laws and parts of laws in conflict with this act are hereby repealed.

AN ACT to amend sections six (6) and seven (7) of an act entitled An act prohibiting the obstruction of ditches or drains, providing a method of keeping them in repair and providing a penalty for the violation thereof," approved February 28, 1889, and declaring an emergency. Approved and in force February 26, 1891; S., 1891, p. 47.

7674. Cleansing ditch, yearly - Owner's failure, penalty - Recovery. SEC. I. Be it enacted by the General Assembly of the State of Indiana, That section six (6) of the above entitled act be, and the same is hereby amended so as to read as follows: Section (6) six. After such allotments have been made it shall be the duty of the owner of each tract of land, and of each corporate road or railroad and the supervisor of the road district in which said allotment is located to clean out and repair the portion of said work so allotted to such tract of land or to such road or railroad or to such township, between the first days of August and November of each and every

year thereafter and in the order and within the time fixed by the township trustee under the provisions of the next following section of this act, and upon failure so to do such owner or such road or railroad shall be liable to a penalty of one dollar for each and every day such work remains unfinished after the expiration of the time so fixed by the trustee as aforesaid, to be recovered by the township trustee in a suit therefor before any justice of the peace of the township in which such owner resides or through or in to which any such road or railroad runs; and all such penalties when recovered shall be paid in to the general township fund: Provided, however, that the penalty provided for in this section shall in no case be recovered from any person unless all the allotments between his own and the mouth of said ditch shall have been completed within the time fixed by the trustee as provided in the next following section of this act. [See § 7666.

7675. Allotment record-Trustee's duty as to Cleansing, time to complete - Notice - Failure to clean - Recovery. § 2. That section seven (7) of the above entitled act be and is hereby amended to read as follows: Section 7. It shall be the duty of the township trustee to procure a transcript of the surveyor's record of allotments of ditches in his township as soon as practicable after the same have been made, and, before the first day of August of each year fix a time within which each allotment on every such ditch shall be completed by the person whose duty it shall be to perform the same; in fixing such time for the completion of such allotments such trustees shall begin with the allotment nearest the mouth of any such ditch, and proceed in regular succession up stream to the beginning of such ditch. He shall make a record of the time so fixed by him for the completion of each allotment on every such ditch separately in a book to be provided for that purpose, and shall, prior to the said first day of August of every year (in which such ditch is to be cleaned or repaired), notify each person, to whose land an allotment has been made, of the time so fixed for the completion thereof; such notice shall be sufficient if it name the ditch, describe the allotment and give the name of the owner of lands to which the allotment is made and specify the time within which such allotment shall be completed, and it may be served by the trustee or other competent person. It shall be the duty of every person or corporation to whom any allotment has been made, upon receipt of such notice from the trustee (or other person for him) to perform his allotment within the time fixed in said notice; and on failure so to do, the trustee shall proceed at once to have the same completed and shall certify the cost thereof, including his own per diem to the auditor of the county, who shall place the same on the tax duplicate as other taxes against such person or corporation, and to be collected as other taxes are collected and, when collected, the same to be paid over to such trustee, or such trustee may recover such expense and his fees before any justice of the peace of the township where the owner resides, or through or in to which such road or railroad runs; or he may bring suit in the circuit or superior court of the county to collect such expense and fees, and enforce and foreclose the lien on such land or upon such road or railroad, and in all suits brought by the trustee under the provisions of this act, such trustee shall also recover reasonable attorney fees, and the judgment shall be without relief from valuation or appraisement laws. [See § 7667.

7676. Emergency. § 3. Whereas, an emergency exists for the immediate taking effect of this act, the same shall, therefore, be in effect from and after its passage.

AN ACT authorizing boards of county commissioners, or other proper officers, of counties of this state, adjoining other states, to join with the boards of commissioners or other proper authorities of such other states, in the construction and repair of ditches, drains and watercourses on, along and across or near to the state line between the state of Indiana and any adjoining state, and to keep the same in repair after construction, and in aid of and supplemental to the laws now in force in this state on that subject. [Approved and in force February 20, 1891; S., 1891, p. 21.

7677. Interstate drainage - Construction, power as to. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That when it may be desirable to construct, widen, deepen or straighten any ditch, drain or watercourse lying on, along, across or near to the state line between the state of Indiana, and any adjoining state, which ditch, drain, or watercourse can not be constructed in the best possible manner without affecting the lands in such adjoining state, the board of county commissioners or other proper officers of the several counties of the state, so adjoining another state, shall have the authority and such boards of commissioners, or other proper officers, are hereby authorized to join with the county commissioners or the proper authorities of such adjoining counties of other states in the construction, widening, deepening or straightening said ditches, drains and watercourses as aforesaid, and said boards of commissioners or other proper officers, shall have power, and they are hereby authorized to jointly enter into contracts with the boards of commissioners or the proper authorities of such adjoining counties in adjoining states, for the construction and improvement aforesaid, each to pay such proportion of the cost of such improvement as shall be determined by and between the said boards of commissioners, or other proper officers of this state and such adjoining state, which shall be equitable and just.

7678. Constructed, when - Who by- Under what law - Cost -Repairs, how made and paid. § 2. Such improvements shall be made by the boards of commissioners, or other proper officers, on petition of the land owners pursuant to the laws in force in this state, and shall be governed by the laws in force, in all things, and this act is supplemental to, and in aid of all laws in force in this state for the construction, widening, deepening and straightening of ditches, drains and watercourses, so far as the same can be made applicable, and any ditch, drain or watercourse so constructed or improved under this act, shall be perpetually kept in repair by the law in force in this state for keeping such drains, ditches and watercourses in repair; the said adjoining county in said adjoining state contributing its proportionate share for keeping the same in repair, according to the proportion paid for the original cost of the same.

7679. Emergency. § 3. Whereas, there is an emergency for the immediate taking effect of this act, the same shall be in force from and after its passage.

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4273. Drainage commissioner - Appointment etc. A drainage commissioner, under this statute (§§ 4273-4284), has no authority to determine the necessity for a bridge over a drain on a highway, nor the sort of bridge - if one is necessary — that should be built, and he has no fund, as commissioner, that he can use in the erection of the bridge-in short, he has no authority to erect the bridge. Mandamus will not lie to compel him to misappropriate a drainage fund in his possession; Rigney v. Fischer, 113–314.

In an action on the bond of an ex-commissioner of drainage, by his successor in office, for the recovery of moneys collected on assessments for the construction of a ditch alleged to have been converted to his own use, the defendant is entitled to credit for all moneys paid or expended for work done under the contract for construction. If he collected and retained in his hand any amount of such assessments when the action was commenced, for that sum he and his sureties are liable; if, before action commenced he had paid out all the money by him received, there is no liability; Harris v. State, ex rel., 123-275.

4274. Petition - Notice etc. Where some kind of a notice of the presentation of the petition is given and such notice is adjudged to have been sufficient by the court. when it took action on the petition, such notice will be deemed sufficient as against a collateral attack; Hackett v. State, for use etc., 113-536.

One who is a petitioner for the construction of a ditch is estopped from claiming that he did not have proper notice of the presentation of the petition; Hackett v. State, for use etc., 113-536.

This statute provides that "if two-thirds, in number, of the land owners, named as such in the petition, resident in the county or counties where the lands affected are situated, shall remonstrate, in writing, against the construction of such drain, or ditch, such petition shall be dismissed at the cost of the petitioners." Under this provision it is error to dismiss the petition unless two-thirds, in number, of the "resident" land owners remonstrate; it being clear, from the language, that non resident land owners can not be computed in determining the number necessary to secure the dismissal of a petition. The statute expressly designates the class of land owners whose remonstrance shall prevail against the petition and expressio unius est exclusio alterius; Bell v. Cox, 122-154.

The provision of this statute requiring a remonstrance to be filed within ten days after the filing of the final report of the commissioners does not apply to cases where the land of an owner is not all described in the petition; it does, however, apply to cases where all such land is described by the petitioners. Where the land is not all described in the petition the last proviso of this section governs, and that leaves the entire case open until the notice therein specified has been duly given. By force of that proviso, a land owner is not in court as to all of his land until the required notice has been given and, until he is in court, he is not bound to file a remonstrance against the report of the commissioners. He has ten days after the notice has been given to file his remonstrance. He is not bound to try his case piecemeal, but may wait until he is brought in to court by due notice and, then, make his remonstrance apply to the entire report, so far as it affects his property; Goodwine v. Leak, 114-500.

Persons who have no title of record need not, under this statute, be made parties defendant to a drainage petition; nevertheless the failure of one to put his title on record does not estop him from applying for leave to be admitted to defend. Being admitted on application and being of right entitled to defend he may attack the petition or remonstrate. In such case his rights are substantially the same as those of the original parties, except in so far as they may be limited or qualified by law; Bell v. Cox, 122-154.

4275. Remonstrance - Damages - Trial- Dismissal. The right to file a remonstrance can not be impaired or defeated by the failure of the commissioners of

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