and that there is no reason for a reversal of the judgment upon the instructions, as the verdict was right upon the evidence. Section 1891, Rev. St. 1881. Many of the cases cited by counsel on both sides were civil actions for forcible entry and detainer, and are for that reason not applicable in all respects to criminal prosecutions like the one in hearing; but, on the general subject, see Cunn. Forc. Ent. & Det. 31 et seq.; Bell v. Longworth, 6 Ind. 273; Archey v. Knight, 61 Ind. 311; Tibbetts v. O'Connell, 66 Ind. 171; Vess v. State, 93 Ind. 211.

The judgment is affirmed, with costs.

(106 Ind. 47)

NIXON and others v. CAMPBELL and others.1

Filed January 20, 1886.

1. APPEAL-ERRORS CONSIDERED.

Where the record affirmatively shows that the judgment rests upon the sec ond paragraph of the complaint, an error in ruling upon the first paragraph will not be considered by the supreme court in a case where the defendant appeals.

2. RAILROADS-TAXES-DONATIONS BY TOWNSHIPS TO AID IN BUILDING RAILROADS-FORFEITURE OF DONATIONS-COUNTY COMMISSIONERS.

Where a railroad has been fully completed through a township, the collection of taxes levied to aid in constructing such railroad through the township cannot be enjoined upon the ground that a sum equal to the amount of the donation was not expended in the construction of the railroad within the township within three years after the tax was placed on the duplicate, nor upon the ground that the railroad was not completed within five years from the seventh day of April, 1877, unless it affirmatively appears that the board of county commissioners declared a forfeiture of such donation in the manner prescribed by the statutes.

8. SAME-LOCATION OF RAILROAD-ORDER OF COUNTY COMMISSIONERS.

An order of the board of commissioners placing the tax upon the duplicate is conclusive as to the fact of the location of the railroad within the township.

Appeal from Fountain circuit court.

Nebeker & Dochterman, for appellant.

McCabe, McCabe & Miller, for appellee. ELLIOTT, J. Marshall Nixon is the sole appellant, those who were co-parties with him in the court below having refused to join in the appeal. As he is the sole appellant, the only errors which would warrant a reversal are such as affirmatively appear to have prejudiced his substantial rights, and as the record shows that the judgment against him rests entirely on the second paragraph of the complaint he was not prejudiced by the rulings on the first paragraph, even if they were wrong. It is therefore neither necessary nor proper for us to discuss the rulings on the first paragraph of the complaint, and we pass them without fur ther notice.

The second paragraph of the complaint alleges that the plaintiffs are tax-payers and citizens of Van Buren township, Fountain county; that at the June session, 1877, the board of commissioners, pursuant to a

'Rehearing denied, 7 N. E. 258.

petition of 25 freeholders previously filed, ordered that a donation of $17,700 be made to the Frankfort & State Line Railroad Company to aid in constructing a railroad through the township; that the board ordered a levy of a tax to pay the amount donated, and directed that it be placed upon the duplicate; that "the company failed to locate its line of railroad or to commence work thereon in said county or township within three years from the levying of said tax; that the company failed for more than three years after the tax was placed upon the duplicate of the county to expend in the actual construction of the road in the said township an amount of money equal to the amount of the donation; that the company had failed to complete its road for use through the township at the time this action was commenced, although five years has elapsed since the seventh day of March, 1877; and that no extension of time has been granted to the company by the board of commissioners. It also appears from the statements of the complaint that the tax has been placed on the duplicate; that the treasurer threatens to collect it; and asserts that it is a lien upon the property of the plaintiffs. An injunction restraining the collection of the tax is prayed.

The grounds upon which the validity of the tax is assailed are these: (1) The failure to locate the railroad through the township until April, 1881. (2) The failure to expend in the construction of the road a sum equal to the amount of the donation within three years after the tax was placed on the duplicate. (3) The failure to complete the railroad through the township within five years from the seventh day of April, 1877.

In our opinion, the first of these grounds is not available. There are two reasons for this conclusion: First. The failure to locate the road within a prescribed time is not made a cause of forfeiture by the statute. Second. The order placing the tax on the duplicate decided that the road was located, and this decision cannot be collaterally impeached. Of these in their order:

First. There is much confusion and very serious conflict in the statutes upon the subject of voting aid to railroad companies, but in the careful and exhaustive opinion in Marion Co. v. Center Tp., 2 N. E. Rep. 368, the statutes are fully considered, and a clear exposition of their meaning given. We do not deem it necessary to again discuss the question, but content ourselves with affirming that the opinion in that case satisfactorily shows what statutes are in force, what are causes of forfeiture, and how forfeitures may be declared. It is evident from the reasoning in that case that the failure to locate the road within a prescribed time is not a cause of forfeiture, provided the road is actually completed and the prescribed sum of money expended in its construction within the limits of the township. Possibly an injunction would lie to prevent the commissioners from placing the tax on the duplicate until the location of the road; but, after it is completed through the township, and after the prescribed sum of money has been expended within the township limits, the collection of the tax cannot be enjoined on the ground that the road was not located within a limited period.

Second. The order of the commissioners placing the tax on the dupli

cate is conclusive as to the fact of the location of the railroad within the limits of the township. This point is so decisively and thoroughly settled that discussion would be out of place. Bish v. Stout, 77 Ind. 265; Faris v. Reynolds, 70 Ind. 367; Board of Com'rs v. Hall, Id. 470; Hilton v. Mason, 92 Ind. 157, see page 164.

The second ground asserted in support of the relief sought is not a tenable one. The provision of the act of 1869 is:

"No donation of money shall be made to any railroad company by such board of commissioners until the railroad shall have been permanently located, and work thereon done and paid for by the company equal to the amount of the donation then made." Rev. St. 4060.

Conceding, but not asserting, that this statute is still in force, it would not avail the appellees, for it is clear that the word "donation" is used as signifying payment. Any other construction would overturn all the statutory provisions upon this subject. The vote and the order for the tax precede the expenditure of money, and it is plain that the legislature did not intend that the decision upon the vote and the order for the tax should not be made until after the railroad company had expended a sum equal to the amount of the donation. It is obvious that until the order is made the amount of the donation could not be known, and the company could not, of course, be held bound to know what was not known to any one.

But we are unable to perceive how it is possible to harmonize the provision we have quoted with the provisions of section 2 of the act of March 11, 1875. That section contains, among others, the following provision:

"And if said railroad company shall not, within five years after said tax has been placed upon the duplicate for collection in the proper county, have expended, in the actual construction of such railroad in said county or township, an amount of money equal to the amount of money to be donated to or stock to be taken in said railroad company, by said county or township, the board of commissioners may, in its discretion, make an order annulling and canceling such subscription of stock or donation of money upon the application of twenty-five freeholders."

The provisions we have quoted require that a declaration of forfeiture shall be made by the board of commissioners, so that in this respect at least, they are inconsistent with the provisions of the former statute; and, under many decisions of this court, it must be declared that to that extent the earlier statutes are repealed. Marion Co. v. Center Tp., supra; Sellers v. Beaver, 97 Ind. 111; State v. Board, etc., 92 Ind. 499; Caffyn v. State, 91 Ind. 324; Board of Tipton Co. v. Indianapolis, etc., Co., 89 Ind. 101; Wilson v. Board, etc., 68 Ind. 507. These decisions also require us to hold, as we do, that unless there is an adjudication by the board of commissioners, in the manner provided by statute, declaring a forfeiture because of a failure to make the expenditure prescribed, the collection of the tax cannot be enjoined.

The third ground relied upon by the plaintiffs as entitling them to an injunction is also disposed of by the cases to which we have referred; for those cases decide that the failure to complete the railroad within the time prescribed will not, without a declaration to that effect by the

board of commissioners, work a forfeiture of the rights of the railroad company.

Judgment reversed, with instructions to sustain the demurrer of the appellant to the second paragraph of the complaint.

(104 Ind. 590)

CIVIL TP. OF MORGAN, etc., v. HUNT.

Filed January 20, 1886.

1. DITCHES AND DRAINS-REMONSTRANCE-VERIFICATION—AMENDMENT.

A land-owner who wishes to remonstrate against the establishment of a ditch, must do so within 10 days after the filing of the report of the commissioners, by filing a remonstrance in substantial compliance with the statute; and, where the paper filed as a remonstrance is not verified, it cannot be amended after the expiration of the 10 days.

2. STATUTORY RIGHT STATUTORY REMEDY.

Where a new right is created by statute, and the mode of exercising it is prescribed, that mode must be pursued.

Appeal from Porter circuit court.

Bartholomew & Crumpacker, for appellant.

Wm. E. Pinney, for appellee.

MITCHELL, J. On the tenth day of April, 1884, Franklin W. Hunt filed his petition in the circuit court of Porter county, praying for the establishment of a ditch. It was averred in the petition that, among other benefits, the ditch, when constructed, would be of great public utility in draining three public highways in Morgan township. The petition was, after due notice, referred to the commissioners of drainage. From the report of the commissioners, to whom the matter was referred, it appeared that two highways, which are not particularly described, would each be benefited to the amount of $80. Within 10 days after the filing of this report what purports to be a remonstrance was filed on behalf of the township. It is not stated in the remonstrance that the township is the owner of any lands, or the holder of any easements in lands, that will be affected by the construction of the proposed ditch, or that it is otherwise interested in its construction. The remonstrance was signed by attorneys for the township, and was not verified. After the expiration of 10 days, the petitioner moved to strike out the remonstrance, on the ground that it was not verified as the statute required. Without showing any excuse for the failure to verify it within 10 days, the township trustee interposed a motion for leave to file an amended remonstrance. The amendment proposed was the verification of the paper originally filed as a remonstrance. This was refused, and the motion to dismiss was sustained.

This ruling is complained of as erroneous. We think the ruling of the court was right. By the statute 10 days are allowed after the filing of their report by the commissioners of drainage to the owners of land affected by the proposed work within which to file a remonstrance. The

statute prescribes that the remonstrance shall be filed within 10 days, and that it shall be verified by affidavit. Assuming, but not deciding, that a civil township may remonstrate without averring that it is the owner of lands affected by the work proposed, or that it is otherwise interested or affected by the proposed work, we are nevertheless of opinion that a remonstance in substantial compliance with the statute must be filed within 10 days. A paper signed by attorneys, without verification by any one, or any attempt to do so, is not a substantial compliance. In Munson v. Blake, 101 Ind. 78, it was held that a remonstrance might be verified by an agent or other person having authority to do so. Until it is verified in some manner by some one we think it cannot be regarded as a statutory remonstrance. Hays v. Tippy, 91 Ind. 102; Crume v. Wilson, 4 N. E. Rep. 169, (decided January 9, 1886.)

Proceedings for the establishment of a ditch are statutory. The right to remonstrate is given by the statute. The time within which the remonstrance is to be filed, who may remonstrate, the grounds upon which it may be predicated, and that it shall be verified by affidavit, are all prescribed by the statute. Where a right is created by a statute, and the mode of exercising it is prescribed, that mode must be pursued. Storms v. Stevens, 3 N. E. Rep. 401. It will not do to say that an informal paper may be filed within 10 days, and by that means the right to file a statutory remonstrance held open indefinitely. Whether a remonstrance in substantial compliance with the statute, which is filed within 10 days, may be amended, is a question not before us. A paper which lacks an essential statutory element of a remonstrance, however, cannot be amended into such remonstrance, after the expiration of 10 days.

A motion to dismiss the appeal was made in this case on the ground that all the persons against whom benefits were assessed were not notified of the appeal. We do not think this was necessary.

There was no error in the ruling of the court, and the judgment is accordingly affirmed, with costs.

(10 Ind. 592)

CONGER and others v. MILLER.

Filed January 20, 1886.

1. PLEADING-ANSWER-CROSS-COMPLAINT.

The same pleading cannot be both an answer and a cross-complaint. 2. SAME CROSS-COMPLAINT.

A cross-complaint must be good within itself, without aid from other pleadings in the cause.

3. SAME QUIETING TITLE-DEMURRER.

A cross-complaint to quiet title, which does not describe the real estate, nor aver that the party against whom the title is sought to be quieted claims some adverse interest which is unfounded or a cloud on the cross-complainant's title, is bad on demurrer.

Appeal from Fulton circuit court.

S. Keith, for appellants.

M. R. Smith and Geo. W. Holman, for appellee.