swer and to the cross-complaint, were all sustained by the Rush circuit court. The venue was changed to the Fayette circuit court, where the cause was tried by the court, and a special finding of facts made, and conclusions of law stated thereon in favor of appellees. The assignment of errors challenges the rulings of the court upon the demurrer to the complaint, the second paragraph of answer, and the demurrers to the crosscomplaint, and also the correctness of the court's conclusions of law.

It appears from the complaint that the ordinance by which the improvements in question were authorized and made was passed on the 18th day of January, 1901, all notices were duly given, and the contract was awarded to appellees Oglesby and Kelly, and on May 6, 1901, a contract in writing between them and the city for the performance of the work was formally executed. On July 16th the city engineer filed his report showing the completion of the work and an apportionment of the costs, which was set for hearing on August 2d, and proper notice given; and on August 6, 1901, the council approved the report and confirmed the assessments as therein made, and assessed appellant's property abutting upon said improvement in the gross amount of $320.04, which property was described as follows: "Beginning at the southeast corner of lot No. 1, in Smith & Carr's addition to the town, now city, of Rushville, Ind.; thence south 76 feet; thence west 251 feet and 8 inches; thence north 76 feet; thence east 251 feet and 8 inches to the beginning. Also, beginning at the southeast corner of lot No. 7, in said Smith & Carr's addition; thence south 76 feet; thence west 89 feet and 11 inches; thence north 76 feet; thence east 89 feet and 11 inches to the beginning." On May 15, 1901 (Laws 1901, p. 534, c. 231), the new law upon the subject of street improvements, which had been theretofore passed and approved, went into effect. The new statute repealed conflicting provisions of the Barrett law, under which the preliminary proceedings were had and the contract let for this improvement, and made no provision with regard to pending proceedings. The method of apportioning and assessing, and also of collecting the costs of such improvements, was changed by the new act.

Appellant insists that the averment of facts in the complaint is insufficient to show that a statutory lien was perfected against its property, because the proceedings were all had in accordance with the provisions of the Barrett law, notwithstanding its repeal, and were not made to conform to the new law after it went into effect. It is settled law in this state, both by legislative action and by judicial determination, that, where a statute under which a liability has accrued has been repealed, and the repealing act does not provide for the extinguishment of such liability, the repealed statute will be treated

as still in force for the purpose of sustaining any proper action for the enforcement of such liability. Section 248, Burns' Ann. St. 1901; Bruce, Treas., v. Cook et al., 136 Ind. 214, 35 N. E. 992; Crawford, Trustee, v. Hedrick, 9 Ind. App. 356, 36 N. E. 771. The complaint under consideration does not allege that any work had been done under the contract, or that any liability had accrued, at the time the repealing statute went into effect. If, however, it were shown that work had then been done and remained unfinished, still, in our opinion, this case would not come within the rule just stated, but would be governed, as it is upon the facts pleaded, by the principle that where new legislation does not take away or impair the previously existing right, nor deny a remedy for its enforcement, but merely modifies the proceedings, while providing a substantially similar remedy, the jurisdiction continues under the forms directed by the later act, in so far as the two acts are different. Mayne v. Board of Com'rs 123 Ind. 132, 24 N. E. 80; Moss v. State ex rel., 101 Ind. 321; Palmer v. City of Danville, 166 III. 42, 46 N. E. 629; City of Philadelphia v. Gorgas, 180 Pa. 296, 36 Atl. 868; Orman v. Crystal River Ry. Co., 5 Colo. App. 493, 39 Pac. 434; Elliott on Roads and Streets (2d Ed.) § 532; Union County Com'rs v. Greene, 40 Ohio St. 318; Texas Midland R. R. Co. v. Southwestern Telegraph & Telephone Co. (Tex. Civ. App.) 58 S. W. 152; Sutherland on Statutory Construction, § 630. The general rule is that statutes granting authority to levy special assessments against private property must be strictly construed, and the mode of procedure prescribed must be closely followed in all essential details. The new statute required the costs of the improvement to be first apportioned by the city commissioners in proportion to the benefits received; but the assessment sued upon was made by the common council upon the engineer's report, without reference to the city commissioners. This was a material and substantial departure from the method prescribed by the law in force at the time the assessment was made, and sufficient to invalidate the lien declared upon in the complaint.

The lien sued upon is invalid upon its face for the further reason urged by appellant, that the assessment was made for a gross sum against two distinct tracts or parcels of ground, each described by metes and bounds. The statute requires that such assessments be made separately against each tract or parcel of ground benefited by the improvement, and, no valid lien is created by an assessment in gross against more than one of such tracts or lots. Becker v. Baltimore, etc., Ry. Co., 17 Ind. App. 324, 46 N. E. 685; Balfe v. Johnson, 40 Ind. 235. It follows that the court erred in overruling appellant's demurrer to the complaint.

The question presented by appellant's answer and cross-complaint will doubtless arise again, in the event of any further litigation

It

involving this matter, and it is therefore deemed expedient to consider the sufficiency of those pleadings upon this appeal. Appellees maintain that the grant by the railroad company to the city of ground for use as a street was valid, but that the provision in the deed that the grantor and the remaining portions of the lot should not then or thereafter be charged with any expense connected with the extension or maintenance of that portion of such street was void. It has long been an established principle that private property may be appropriated for a highway when public necessity, convenience, or utility requires it. It is quite as essential that such highway be improved and kept in repair as that it be established in the first instance. has been, and is, the theory of our law that the opening and improvement of a public highway will benefit the abutting and adjacent property, and that such property should be primarily and proportionately liable for the costs and damages occasioned thereby to the extent of such resulting benefits. This was the law in the year 1882, when the deed in question was executed, and it has continued to be the law to the present time. Conceding that the city of Rushville might purchase the title or an easement in land for use as a street, and obligate itself to pay a fair and reasonable compensation therefor, it does not follow that, as a part of the consideration, it could make a covenant or accept a condition that would annul a provision of its charter, and bind the descretionary judgment of future councils and governing bodies of the municipality. If, in consideration of the grant of such right, the city might lawfully release one man and his property from future liability for street improvements abutting such property, by the same right it might release all property within its jurisdiction, and thus make street improvements impossible, or subject an entirely different fund to the payment of the costs of such improvements from that provided by law. This provision of the contract was not only contrary to public policy, but in contravention of positive law. In so far as the contract attempted to release appellant's property from liability for future improvements upon the abutting street, it was ultra vires and void. Leggett v. City of Detroit (Mich.) 100 N. W. 566; Vrana v. City of St. Louis, 164 Mo. 146, 64 S. W. 180; City of Shreveport v. Shreveport, etc., Ry. Co., 104 La. 260, 29 South. 129; Elliott on Roads and Streets (2d Ed.) § 148; Richards v. Cincinnati, 31 Ohio St. 506; City of Des Moines v. Hall, 24 Iowa, 241. It follows that the demurrers to appellant's second paragraph of answer and cross-complaint were correctly sustained. Other questions have been discussed, but, as it is not probable that they will arise again, they will not be considered.

The judgment is reversed as to appellees Oglesby and Kelly, with directions to sustain appellant's demurrer to the complaint, and affirmed as to the appellee city of Rushville.

(165 Ind. 549)

SMALL et al. v. BUCHANAN et al. (No. 20,601.)

(Supreme Court of Indiana. Nov. 28, 1905.) DRAINS-ASSESSMENTS DRAINAGE COMMISSIONERS QUALIFICATIONS · OBJECTIONS WAIVER.

Burns' Ann. St. 1901, § 240, disqualifies persons to act in matters affecting others, where they are related within the sixth degree of consanguinity or affinity, and section 5624, providing for the construction of drains, requires all objections to the qualifications of drainage commissioners to be made within 10 days after the filing of the petition, and declares that all objections not made within such time shall be deemed waived. Held that, where a landowner was brought into court for the first time in such proceedings in response to a notice that his lands were assessed for the construction of a ditch by the report of drainage commissioners, he was not estopped by section 5624 to then object to the competency of such commissioners on account of their kinship to some of the petitioners.

Appeal from Circuit Court, Clinton County; A. D. Thomas, Special Judge.

Proceedings by Charles T. Buchanan and others against James M. Small and others for the construction of a public ditch. From an order denying the motion of James M. Small and others to reject the report of drainage commissioners because of their disqualification, objectors appeal. Case transferred from the Appellate Court, under Burns' Ann. St. 1901, § 1337u. Reversed.

B. F. Ratcliff, for appellants. A. J. Shelby, Guenther & Clark, and H. C. Sheridan, for appellees.

MONTGOMERY, J. Appellees commenced this proceeding by filing their petition in the Boone circuit court for the construction of a public ditch. Upon application for a change of venue the cause was transferred to the court below, and after a trial the drain was established, and ordered constructed. The original assessments proved inadequate to cover the cost of the work, and a supplemental petition was filed in the Clinton circuit court asking authority to make additional assessments to provide funds for the completion of the ditch. The matter was heard and duly referred to the drainage commissioners, who made additional assessments and filed their report in which lands of appellants were for the first time assessed. Appellants had not been parties to the proceeding prior thereto, or had any notice of its pendency, but, upon the filing of this report, they were duly brought into court upon notice. At the time fixed for hearing by said notice, appellants appeared, and each filed a motion supported by affidavits, to reject the report of the drainage commissioners, for the reason that two of them were related, as shown, within the sixth degree to various parties whose lands were assessed by them for the construction of said ditch. These several motions were overruled, and appellants duly

excepted. Appellants thereupon filed separate remonstrances to the report of the commissioners, the fourth specification of which alleged the kinship of two of the commissioners to parties whose lands were affected, and further charged that the remonstrators' names and lands had been omitted and left out of the supplemental petition by the petitioners, with the fraudulent intent of preventing them from appearing and making objection to the qualification of said drainage commissioners at the time this matter was referred to such commissioners. This specification or ground of remonstrance was stricken out upon appellees' motion, and appellants severally excepted. A trial upon the other causes stated in the remonstrances resulted in a finding and judgment against appellants.

The question presented by this appeal is, whether a landowner, brought into court for the first time in response to a notice that his lands have been assessed for the construction of a ditch by the report of drainage commissioners, under section 5624, Burns' Ann. St. 1901, may at that time question the competency of such commissioners to act on account of their kinship to some of the petitioners. It is insisted by appellees that, upon the authority of Yancey et al. v. Thompson et al., 130 Ind. 585, 30 N. E. 630, this question must be answered in the negative. Section 5624, Burns' Ann. St. 1901, provides, among other things, that: "Any person named in such petition as the owner of land shall have ten days, exclusive of Sunday, and the day of docketing such action, to file with said court any demurrer, remonstrance, or objection he may have to the form of said petition or as to why said drainage commissioners, or either of them, on account of their interest in said work, or kinship to any person whose lands are affected thereby, should not act in the matter. * * All objections to the petition or the acting of any drainage commissioner not made within said ten days shall be deemed waived. * And provided further, that in all cases where lands are named in said report as affected by such proposed work, which are not named in the petition, | the court shall fix a time for hearing the report, and it shall be the duty of the petitioners at their own cost, to give ten days' notice to the owners of such lands of the filing of such report in the same manner as herein required to be given of the filing and docketing of the petition, which notice shall state the time for hearing such report, and in such case the court shall continue the hearing of said entire report until such notice has been given as last above provided. The same proceeding shall be had in regard to such report as if all the lands mentioned therein, and the owners thereof, had been named in the original notice of the filing of the petition." In the case of Yan

cey v. Thompson, supra, the point presented and decided was that new parties brought in by the report of drainage commissioners under the abovo statute could not unite in a remonstrance, and, thereby constituting two-thirds of all persons whose lands would be affected by the proposed ditch, on the ground of numbers dismiss the proceeding. In disposing of the question presented, the court said that: "If the commissioners should be of the opinion that other lands than those named in the petition would be affected, they should be notified of the proceedings by the petitioners at their own costs, and that such landowners should not have any right at that stage of the proceedings to raise any objection to the form of the petition, the competency of the drainage commissioners to act, or in relation to the prosecution of the proceedings, yet they should have the same rights as those named in the petition as to their substantial rights as presented by the report of the commistioners." The authority of that case cannot be extended beyond the point actually presented and decided. The statement of the court above quoted with regard to the question now under consideration was not necessary to a decision of that case, although the two questions are closely related.

The statute above quoted clearly evinces a legislative intention to secure disinterested and impartial drainage commissioners. It is a fundamental principle that all tribunals clothed with judicial or quasi judicial functions shall be disinterested and unbiased in all matters brought before them. Any other rule or doctrine would be abhorrent to a natural sense of justice, and incompatible with judicial action. Courts will not construe a statute so as to deny to parties a right so elementary and important as that of having a fair and impartial tribunal to determine property interests, unless such construction is forced upon them by the very terms of the act. The statute says that: "The same proceedings shall be had in regard to such report if all the lands mentioned therein, and the owners thereof, had been named in the original notice of the filing of the petition." The proceedings to be had in pursuance of the notice upon the original petition contemplated a hearing of any timely objections to the qualifications or competence of the drainage commissioners. The right of a landowner affected to have disinterested and impartial men to make the first assessments of benefits against his lands is a substantial right, and should be secured equally to all concerned, who are vigilant in asserting it. The statute further says that objections not made within the time prescribed shall be deemed waived. Correctly speaking, a waiver can only occur when the party having the opportunity fails seasonably to assert a known right. Appellants, not having been parties to the pro

ceeding or aware of its pendency until after notice of the filing of the commissioners' report making assessments against their lands, were not called upon to act, had no rights to assert, and no opportunity to appear, and the statute cannot reasonably or justly be construed to mean that their silence during this period operated as a waiver of the disqualification of commissioners in whose selection they did not participate or quiesce.

ac

Section 240, Burns' Ann. St. 1901, provides that: "When a person is required to be disinterested on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, shall be deemed to disqualify such person from acting, except by consent of parties." This statute confirms the principle above stated. Appellants neither consented to the selec tion or serving of the incompetent commis. sioners, but, on the contrary, made their objections at the earliest opportunity afforded. A majority of the drainage commissioners were, upon the facts shown, disqualified on account of kinship; appellants did not waive such incompetency, but made seasonable objection thereto; the report of the drainage commissioners was voidable as against appellants, and should have been rejected upon their motion. Markley v. Rudy et al., 115 Ind. 533, 18 N. E. 50: High v. Big Creek, etc., Ass'n, 44 Ind. 356; Bradley v. City of Frankfort. 99 Ind. 417; Elliott on Roads and Streets (2d Ed.) 283.

The judgment is reversed, with directions to sustain appellants' motions to reject the report of the drainage commissioners, and for further proceedings in accord with this opinion.

(166 Ind. 149)

TERRE HAUTE & I. R. CO. v. ZEHNER. (No. 20,613.)*

(Supreme Court of Indiana. Nov. 28, 1905.) 1. EASEMENTS RIGHTS ACQUIRED BY PRESCRIPTION.

A right by prescription to conduct water through a culvert under a highway, when so maintained as to impose no hindrance or expense to the public, may be acquired against the fee owner of the land underlying the highway by 20 years' adverse and uninterrupted user.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Easements, § 29; vol. 25, Cent. Dig. Highways, § 296; vol. 48. Cent. Dig. Waters and Water Courses, § 224.]

2 APPEAL FORMER DECISIONS CONCLUDED.

a

QUESTIONS

as the original in different form, must be regarded as filed at the date of the commencement of the action in determining the effect of a statute of limitations.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 544, 545.] Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

Action by William Zehner against the Terre Haute & Indianapolis Railroad Company. From a judgment for plaintiff, defendant appeals. Cause transferred from the Appellate Court under Burns' Ann. St. 1901, & 1337u. Affirmed.

J. G. & D. P. Williams, for appellant. Charles Kellison, for appellee.

The

HADLEY, J. A chain of three lakes in Marshall county extend generally east and west for a distance of about 31⁄2 miles. chain has Lawrence Lake on the east, Meyers Lake in the center, and Cook Lake on the west. The water flow of all is to the west. Lawrence flows into Meyers, and Meyers into Cook, through narrow, natural thoroughfares through which water perpetually flows from east to west, and all have a natural common outlet at the west end of Cook. Each of said thoroughfares is crossed by a highway, the one between Lawrence and Meyers known as "Lawrence Crossing," and the one between Meyers and Cook as "Twin Lake Crossing." About 1845 appellee's grantors, being the owners of the fee of the lands, raised a dam that had been previously constructed across the general outlet of said lakes at the west end of Cook Lake from nine feet to a height of thirteen feet to furnish power for milling purposes. The raising of the dam set the water back over Cook Lake, and through the thoroughfare at Twin Lake Crossing, into Meyers Lake, thereby submerging additional lands along the margin of said lakes, owned in part by appellee's grantors, and in part by others; the fee of the real estate embracing Twin Lake thoroughfare being, all the time covered by these events, in Elizabeth Witwer and her grantors. Shortly after the dam was raised the public highway referred to, running north and south, was constructed over Twin Lake thoroughfare. The crossing was effected by raising an embankment of earth a few feet above the water and in the original construction a culvert four feet wide was put in near the south shore, which was a high bank, to enable the water from Meyers Lake to run through into Cook Lake. This culvert being liable to fill with silt, or washings from the shore, in 1866 appellee constructed in the highway embankment, 50 to 60 feet north of the old one and above the center of the thoroughfare, another culvert of the same size and for the same purpose as the first one. These culverts kept the state of the water east and west of the highway embankment substantially the same. In 1883 the Terre Haute & Logansport Rail