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owner or owners,

may apply for

to each and every part of the statute, to the such drainage by petition filed in duplicate circumstances under which it was enacted, the to the circuit court or superior court of the old law on the subject, other statutes on the same or relative subjects, whether in force county in which the lands of the petitioner or repealed, to contemporaneous legislative hisor petitioners are situated." tory, and to the evils and mischiefs to be remedied.

The 1915 act, as it clearly appears from the title, looks to the organization of drainage districts, the boundaries of which are to be fixed by the court, and furnishes the procedure for the complete drainage and reclamation of the entire district, regardless of the number of ditches required, while the act of 1907, supra, contemplates a single ditch or laterals which must be clearly pointed out in the petition.

The repeal of a statute by implication is not favored, and when it is possible so to do, two or more acts on the same subject will be so construed that they both may stand. Board v. Garty, 161 Ind. 464, 68 N. E. 1012. In 1 Lewis's Southerland, Stat. Constr. (2d Ed.) § 267, the author says:

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REVIEWERS-STATUTE.

In a city's proceeding, to improve an open drain by constructing a sewer, under the provisions of Burns' Ann. St. 1914, § 8729, providing for the appointment by the circuit court of a board of assessors, and that appeals from its assessments may be made to the circuit court within 15 days from filing of the assessment "As laws are presumed to be passed with de- roll, to be conducted as other appeals, the cirliberation and with a full knowledge of all exist-cuit court committed error in sustaining the ing ones on the same subject, it is but reasoncity's motion to refer the appeals of parties asable to conclude that the Legislature, in passing sessed to three disinterested reviewers, and a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two

is irreconcilable."

This court has many times affirmed the rule that implied repeals are only recognized and upheld when the latter act is so repugnant to the former as to render them wholly irreconcilable. Beard v. State, 176 Ind. 353, 95 N. E. 1103, and cases cited. Collins Coal Co. v. Hadley, 38 Ind. App. 637, 75 N. E. 832, 78 N. E. 353; Monical v. Heise, 49 Ind. App. 302, 94 N. E. 232.

While the general purpose of the two acts, drainage of land, is the same, yet no one will seriously contend that they do not proceed on widely different lines, and that either, in a proper case, may be followed without conflict with the other. True when a drainage district has been formed, and the association perfected as provided in the 1915 act, as to that district the application of the earlier act would be excluded. But in the case at bar it is not contended that the ditch in question, or any part of it, is within the boundaries of any incorporated district, yet it is insisted that after the passage of the latter act the proceedings should have been dismissed or continued under this act. There is no ground for this insistence, and no reason for holding that both acts cannot stand. The judgment is affirmed.

(186 Ind. 9)

HAYNES AUTOMOBILE CO. et al. v. CITY
OF KOKOMO. (No. 22708.)

(Supreme Court of Indiana. Jan. 4, 1917.)

in overruling appellants' various motions to submit the appeals to the court for hearing and to strike out the report of the reviewers.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1184; Dec. Dig. 511(2).] ·

4. DRAINS 70- IMPROVEMENTS
MENTS STATUTE "PROPERTY."

ASSESS

The word "property," as used in Burns' Ann. St. 1914, § 8729, relative to the improvement of water courses, and drainage, or the construction of any sewer or drain, and assessments therefor, means real property as distinguished from personal property.

[Ed. Note.-For other cases, see Drains, Cent. Dig. § 74; Dec. Dig. 70.

For other definitions, see Words and Phrases,
First and Second Series, Property.]
5. MUNICIPAL CORPORATIONS 425(3) -
STREET IMPROVEMENT PROPERTY ASSESSA-
BLE-RAILROAD'S RIGHT OF WAY.

A railroad company's right of way abutting upon a street is subject to assessments for the improvement of such street.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1033; Dec. Dig. 425 (3).]

6. DRAINS 70-IMPROVEMENT - PROPERTY
ASSESSABLE INTERURBAN RAILROAD'S
RIGHT OF WAY-STATUTE "EASEMENT OR
INTEREST IN LAND."

An interurban railroad company, owning and operating a railway in a city's streets, does not hold any "easement or interest in the land" on which the tracks are located, the permission of the city giving a company a right to use the street being part of the public easement, and the city and not the railroad company, being assessable for the benefits accruing to the public easement in the street from the improvement of an open drain under Burns' Ann. Št. 1914. § 8729.

[Ed. Note. For other cases, see Drains, Cent. Dig. § 74; Dec. Dig. 70.]

Appeal from Circuit Court, Howard Coun

1. STATUTES 181(1)—CONSTRUCTION-LEG-ty; Wm. C. Purdum, Judge. ISLATIVE INTENT.

Proceeding by the City of Kokomo, under

In construing a statute, the Supreme Court will seek to discover and carry out the intention the provisions of Burns' Ann. St. 1914, § of the Legislature, and in search for it will look 8729, to improve an open drain, wherein

the Haynes Automobile Company, the Union, of appellee's motion to submit the appeals Traction Company of Indiana, and another and remonstrances of appellants to three diseach filed written appeal to the circuit interested reviewers, and in overruling their court and moved that the appeals be submit- various motions to submit the appeals to the ted to and determined by the court, and that court and their motions to strike out the rethey, as remonstrators, be permitted to in- port of the reviewers. Appellant Union Tractroduce evidence in support of their appeals, tion Company also assigns the additional erand the Union Traction Company of Indiana ror of overruling its motion to strike out of moved to strike from the assessment roll and the assessment roll the assessment against declare void the assessments against its its franchise right of way within the city. right of way within the city of Kokomo under The first four errors assigned present for franchise given it by the city. The court consideration the question: Did the court err overruled the motions, and submitted the in referring the appeals to reviewers instead appeals to three reviewers to view and assess of considering the same and hearing evithe property, who returned a report that dence thereon? Section 122 of the act of the former assessments were not excessive, 1905 (Acts 1905, p. 310) and section 8729, whereupon appellants moved the court to Burns 1914 (Acts 1909, p. 238), both provide strike out the report because the court was for the appointment by the circuit court of a not authorized to submit the appeals to board of assessors to view the line of the the reviewers. From judgment overruling drain, the lands to be benefited and those the motions and new motions that appellants' damaged, and make an assessment roll, showappeals be submitted to the court, and that ing the benefits to all the lands and property, they be permitted to introduce evidence in and a roll showing the damages to the lands support thereof, the Haynes Automobile Com-injuriously affected, if any. Section 8729 pany, the Union Traction Company of Indi- further provides: ana, and another appeal. Judgment reversed, with instructions.

J. A. Van Osdol, of Anderson, and Blacklidge, Wolf & Barnes, of Kokomo, for appellants. Joseph C. Herron, of Kokomo, for appellee.

"That appeals from such assessments may be made to the circuit court within fifteen days from the time such assessment rolls are filed, to be conducted as other appeals.'

It was the evident intention of the Legislature that the report of the assessors should be fied in the circuit court, and that the circuit court should have power to review the assessment by the trial of the issues joined on the assessments. And "to be conducted as other appeals" meant that the court should try the issue as to the assessments as other appeals are tried, which would be to hear evidence independent of the report of the assessors. This is further evident from the provision in said section:

This would give effect to all portions of the statute under consideration, and carries out the evident intent of the Legislature. This action makes no provision for the appointment of reviewers, but does provide that the assessors shall be subject at all times to the direction of the court.

ERWIN, J. This proceeding was to improve an open drain, known as "Petes run" flowing through the southern portion of the city of Kokomo, Ind., by constructing a sewer, extending beyond the city corporation limits, under the provisions of section 8729, Burns 1914. Within 15 days after the filing of the assessment roll the three appellants, Haynes Automobile Company, Union Traction Com"That the judge shall have the power to call pany, of Indiana, and Traction Land Com-thorized and empowered to make any such adthe said assessors together, who shall be aupany, each filed their written appeal to the ditions or corrections as may be necessary from Howard circuit court, and moved that the time to time." appeals be submitted to and determined by the court, and that they, as remonstrators, be permitted to introduce evidence in support of their appeals. The Union Traction Company of Indiana moved to strike from the assessment roll and to declare void the assessment against its right of way within the city of Kokomo under franchise given it by the [1] In construing a statute, the court will city. The court overruled the above mo- seek to discover and carry out the intention tions, and submitted the appeals to three re- of the Legislature in its enactment. In the viewers to view and assess the property. The search for that intention the court will look reviewers returned a report that the former to each and every part of the statute, to assessments were not excessive, whereupon the circumstances under which it was enactthe appellants moved the court to strike out ed, to the old law upon the subject, if any, the report of the reviewers, for the reason to other statutes upon the same subject, or that the court was not authorized to sub- relative subjects, whether in force or repealed, mit its appeals to the reviewers. These mo- to contemporaneous legislative history, and tions were overruled. Appellants again to the evils and mischiefs to be remedied. moved that their appeals be submitted to the court, and that they be permitted to introduce evidence in support thereof, which motions were likewise overruled.

Hughes v. Indiana Union Trac. Co., 57 Ind. App. 202, 105 N. E. 537; Thorn v. Silver, 174 Ind. 504, 89 N. E. 943, 92 N. E. 161.

[2] Appellee contends that the statute does Appellants assign as error the sustaining not provide any method of procedure to be

followed by the trial court. Where the pro- lands of frontagers. Pittsburgh, etc., R. Co. ceeding is a special statutory one, the general v. Muncie, etc., Trac. Co., 174 Ind. 167, 176, rules of practice in civil actions are applica- 91 N. E. 600, and cases cited. ble, when the statute is silent. Thorn v. Silver, 174 Ind. 505, 513, 89 N. E. 943, 92 N. E. 161.

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[6] If there is no additional burden, the construction and operation of an interurban street railroad upon a street is not different [3] Under the above construction of the in character or extent from that contemplatstatute the court committed error in sustained at the time of the dedication or condeming appellee's motion to refer the appeals to three disinterested reviewers and in overruling appellants' various motions to submit the appeals to the court for hearing and to strike out the report of the reviewers.

[4] Appellant, Union Traction Company of Indiana, contends under its fifth assigment of error that the tracks of a street and interurban railroad lying wholly within a city street are not "property" within the meaning of section 8729, supra. There can be no doubt that the word "property" as there used means real property as distinguished from personal property. Marion, etc., Trac. Co. v. Simmons, 180 Ind. 289, 292, 102 N. E. 132.

Appellee cites the case of Marion, etc., Trac. Co. v. Simmons, supra, and contends that the right of way in this case is property within the meaning of section 8729, supra. The opinion in that case does not clearly show, but the record discloses, that the right of way under consideration was a private interest in the land which' the company, as the court said, might make the subject of a grant. Therefore that case is not on a par with this one, for here the right of way is shown to be a mere grant of a right to use a public street. It has been held that a private right of way of a railroad may be regarded as a parcel of land for the purpose of drainage assessments because the company owned an interest in the soil amounting, at least to an easement. Louisville, etc., R. Co. v. State, etc., 122 Ind. 443, 24 N. E. 350.

[5] A railroad company's right of way abutting upon a street is subject to assessments for the improvement of such street. Pittsburgh, etc., R. Co. v. Taber, 168 Ind. 419, 77 N. E. 741, 11 Ann. Cas. 808.

In Indianapolis, etc., R. Co. v. Capitol Paving etc., Co., 24 Ind. App. 114, 117, 54 N. E. 1076, 1078, it is said:

"When a company lays its tracks in the street, it imposes a new burden upon the land beyond the easement the city had, and this new interest can be created only by contract with the owners of the fee, or under the right of eminent domain."

The court was there considering a street improvement, and intimitated that an assessment for drainage might be enforced against the railroad company. This, however, is up on the theory that the right of way is land by reason of being an additional burden upon the lands occupied by the street. This court had held, however, that the use of a street by an interurban railroad does not constitute an additional burden or servitude upon the

nation of the street. It must follow, therefore, that such companies, owning and operating such railways in the streets, do not hold any easement or interest in the land upon which the tracks are located. The permission of the city giving the company a right to use the street is a part of the public easement, and the city is assessable for the benefits accruing to the public easement in the street. There is here no showing that the franchise of the appellant provided that it should pay any portion of the benefits to this easement, or that the right of way assessed was a private right of way such as was considered in the case of Marion, etc., Co. v. Simmons, supra. We are therefore of the opinion that the court erred in overruling the appellant's motion to strike out the assessment against its right of way over the streets of appellee.

For error in sustaining appellee's motion to submit the appeal to three disinterested reassessors and in overruling appellants' motions to submit the appeal to the court for trial upon the issues, the judgment is reversed, with instructions to overrule appellee's motion to submit the appeal to reappraisers and to sustain appellants' motion to strike out the report of the reassessors, and to sustain the motions submitting the appeals to the court for trial and determination.

(63 Ind. App. 533)

BUTLER v. BUTLER. (No. 9206.) (Appellate Court of Indiana, Division No. 2. Jan. 11, 1917.)

1. TENANCY IN COMMON 28(1)-LIABILITY OF TENANT IN POSSESSION FOR RENTS.

The possession of one tenant in common being the possession of all, the tenant in possession is not liable for rent unless he excludes his cotenant, but if he receives rent from a third person he must account for it.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 76, 83; Dec. Dig. 28(1).]

OUSTER OF

2. TENANCY IN COMMON 14 COTENANT. Where a tenant in possession purchases the land at a tax sale and takes a deed in his own name claiming at the time of the sale and thereafter that he is the owner and holds possession at all times under such claim and deed, he is deemed to have ousted his cotenant, for he claims under a deed conveying the whole estate.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 30-41; Dec. Dig. 14.] 3. TENANCY IN COMMON 20(2)-TAX TITLE.

Where one of several tenants in common purchases the common property at a tax sale,

761

he cannot set up his title thus acquired against | 1904, which were reasonably worth $160 per the common title, but his tax title inures to the common benefit of himself and cotenant, though the common property is subject to the charge for the money expended in purchasing such tax title.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 61; Dec. Dig. 20(2). 4. TENANCY IN COMMON 20(2)-TAX TITLE

-RATE OF INTEREST.

The charge on the common property to which a tenant in common is entitled for his purchase of tax title thereon is limited to the amount paid and 6 per cent. interest, and such tenant is not entitled to the principal and interest provided for tax liens; Burns' Ann. St. 1914, § 10393, as to tax deeds, not applying. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 61; Dec. Dig. 20(2).] Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by Cornelius C. Butler against Harlan H. Butler. From a judgment for plaintiff, defendant appeals. Affirmed.

Albert Ward, of Peru, for appellant. Antrim & McClintic, of Peru, for appellee.

IBACH, P. J. An action for partition and for an accounting for rents and profits in which the defendant set up by way of counterclaim certain claims for taxes and improvements. Defendant also, by way of cross-complaint, claims title to such property under a tax deed.

The correctness of the conclusions of law stated on the special finding of facts is the only question presented for review.

6 per cent. per annum from the date of the re-
annum and which, with interest at the rate of
ceipt of each year's rent, aggregated (exclusive
of the year 1913), $1,841.94.
lant) made lasting and valuable improvements
(Appel-
at said tax sale. Paid taxes and assessments
on said real estate. Paid the purchase money
which were liens on said real estate and on
principal and interest on said mortgage, which
amounts so paid, and the value of the improve-
ments so made, together with interest at the
rate of 6 per cent. per annum from the respec-
for which he should be reimbursed, are as fol-
tive dates of payments and improvements and
$187.25; fencing, $379.50; flood gates, $34.24;
lows: Ditches, $275.95; well and clearing,
64; and ditch assessments, $24.28 in an ag-
taxes, $599.08; payments on mortgage. $401.-
gregate amount of $1,899.94. **
lee) made payments on said improvements and
* (Appel-
on the principal and interest of said mortgage

which, with interest at the rate of 6 per cent.
payments, aggregate $798.28 and has never
per annum from the respective dates of such
been paid therefor.
* Said real estate

to the interests of the respective owners of the
is not susceptible of division without damage

same.

they are not important here, as the above Other facts are found by the court, but facts present the controlling questions in this appeal. The court concludes as a matter of law that appellant and appellee, are the owners in fee simple as tenants in common in equal proportions of said real estate; that said real estate should be sold, and, after the payment of the costs of this action and the costs of such sale, the remainder of the proceeds should be distributed as follows: "To Harlan H. Butler (appellant)

ler (appellee)

$58; to Cornelius C. But$798.28; the remainder to be divided equally between Harlan H. Butler and Cornelius C. Butler." Judgment followed the conclusions of law.

Appellant contends that, as a cotenant in possession, he was not liable for the rents of the land in the absence of an agreement

The court finds the following facts: On January 31, 1889, the father of appellant and appellee deeded to them a 40-acre tract of land, for which they paid a cash consideration of $30 and assumed a school fund mortgage for $350. The father, by a provision in the deed, retained control of the rents and profits of the land during his lifetime, and also agreed to pay the taxes during such time. It was agreed between appellant and appellee that the one in possession of the land should make needed and valuable improvements thereon, and that they should be considered and allowed to the one making them in the final settlement or division by them of the real estate. taxes became delinquent for the years 1896 and 1897, and on February 14, 1898, the land was sold for taxes and purchased by appellant at such tax sale. The land was not redeemed, and on March 5, 1900, appellant received a tax deed for it, which deed [1] The principle seems well established in was recorded on the same day. At the time this state that the possession of one tenant of the sale and afterwards, and after the in common is the possession of all, and the execution of the tax deed, appellant claim-tenant in possession is not required to pay ed and still claims to be the owner of the rent unless he excludes his cotenant; but, real estate by virtue of said sale and deed, if he receives rent from a third person, he and holds possession of the real estate by must account for it. Geisendorff v. Cobbs, virtue of such deed and sale. The father 47 Ind. App. 573, 94 N. E. 236. died July 4, 1904.

The

The court further finds: Appellant "has received all the rents and profits from said real estate since March 1,

unless he had excluded his cotenant or received rent from third persons; that the court did not find, either in substance or otherwise, to the effect that appellee ever demanded possession or was ever denied possession; that appellant ever received any rents from third parties; that there was any agreement between the parties as to such possession by appellant; or that there is any finding of adverse possession or ouster of appellee.

[2] When appellant purchased the land at the tax sale and took a deed in his name, claiming at the time of the sale and since the execution of the tax deed that he was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the owner, and at all times since its execution holding possession under such claim and deed, he was under the law claiming under a deed conveying the whole estate and will be deemed to have ousted his cotenant. Nelson v. Davis, 35 Ind. 474, 483; King v. Carmichael, 136 Ind. 20, 24, 35 N. E. 509, 43 Am. St. Rep. 303; Wright v. Kleyla, 104 Ind. 223, 4 N. E. 16.

Appellant next insists that, inasmuch as the court found that he was entitled to credit for certain taxes paid, he should have been allowed interest at the rate of 20 per cent. per annum instead of 6, as decreed by the court.

[3] Where one of several tenants in common of an estate purchased the common property at a tax sale, he cannot set up his title thus acquired against the common title, but his tax title inures to the common benefit of himself and his cotenants; though in

such a case the common property is subject to the charge of the purchaser at the tax sale for the money expended in such purchase. 38 Cyc. 48, 49; Harrison v. Harrison, 56 Miss. 174.

"One tenant in common cannot, while in possession of the joint property and enjoying the rents and profits thereof, permit the same to go delinquent for nonpayment of taxes and purchase it in at tax sale and thus acquire his cotenant's title." English v. Powell, 119 Ind. 93, 95, 21 N. E. 458, 459; Bender v. Stewart, 75 Ind. 88.

[4] Appellant, having purchased the property at tax sale for the benefit of his cotenants, could not profit by such transaction. Therefore this case is not controlled by section 10393, Burns 1914, and the court did not err in fixing the rate of interest on the payments for taxes.

at that term, and the filing and approving of a bond after the term, but within the time allowed by the trial court, did not cure the omission of the essential requirement.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2059-2062; Dec. Dig. 386(1).]

Appeal from Circuit Court, De Kalb County; Ernest A. Brattan, Special Judge.

Action by Earl D. Leas, as administrator of the estate of Sarah A. Rohrbaugh, de ceased, against Matilda Rohrbaugh. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss. Motion sustained, and appeal dismissed.

Edgar W. Atkinson and C. M. Brown, both of Auburn, for appellant. Hoffman & Shearer, of Auburn, and Wm. H. Leas, of Waterloo, for appellee.

BATMAN, J. [1] Appellee, under a special appearance, moves to dismiss this appeal on several grounds, only two of which we find it necessary to consider. The judgment below was rendered in favor of Earl D. Leas, as administrator of the estate of Sarah A. Rohrbaugh, deceased, against Matilda Rohrbaugh. The parties are designated in the assignment of errors: "Matilda Rohrbaugh, Appellant, v. Earl D. Leas, Administrator, Appellee." The rules of this court require the assignment of errors shall contain the full names of the parties, and unless this rule is complied with the appeal will be dismissed.

Whisler v. Whisler (1904) 162 Ind. 136, 67 N. E. 984, 70 N. E. 152, and Bender v. State ex rel. (1911) 176 Ind. 70, 95 N. E. 305.

In the case first cited, one of the defendants named in the complaint was Cornelius

No available error having been pointed Laumaree, executor of the estate of John out, the judgment is affirmed.

(63 Ind. App. 544)

ROHRBAUGH v. LEAS. (No. 9566.) (Appellate Court of Indiana, Division No. 1. Jan. 12, 1917.)

1. APPEAL AND ERROR 722(3)-ASSIGNMENT OF ERRORS-NAMES OF PARTIES-AD

MINISTRATOR.

Where the judgment appealed from was rendered in favor of an individual, as administrator of the estate of another, deceased, but he was described in the assignment of errors as administrator only, the appeal would be dismissed, since the rules of the Appellate Court require that the assignment of errors shall contain the full names of the parties, and unless the rule is complied with the appeal will be dismissed, while the administrator was a party to the judgment only in his representative capacity.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2992; Dec. Dig. 722(3).] 2. APPEAL AND ERROR 386(1)-TERM TIME APPEAL-FAILURE ΤΟ Fix AND APPROVE PENALTY AND SURETY OF BOND AT TERM. Where final judgment was rendered at the December term, 1915, of the trial court, to have a term time appeal, under Burns' Ann. St. 1914, § 679, it was necessary that the penalty and surety of the appeal bond be fixed and approved

Whisler, deceased, with the will annexed. Another was Lewis Signs, who was trustee under the will of John Whisler, deceased, for some five beneficiaries. Neither of said parties was so described in the assignment of errors, but their names appear therein as "Cornelius Laumaree, executor, Lewis Signs, trustee." The court said (162 Ind. on page 139, 67 N. E. 985):

* *

"These two defendants were sued in their representative capacity, and not as individuals. Where persons sue or are sued in a representative capacity the rule that the full names of the parties shall be set out in the assignment of errors requires that they shall be properly described in that pleading as such representatives or fiduciaries. Otherwise the court to which the appeal is taken acquires no jurisdic tion over them. The appellee Cornelius Laumaree, executor of the estate of John Whisler, deceased, with the will annexed,' could not have character by the description 'Cornelius Laumabeen sued and charged in his representative ree, executor,' without the addition of further averment or designation showing his relation to the will or estate of some person. The same thing is true of the appellee, Lewis Signs, who is described in the assignment of errors simply as 'trustee'; but how created, or for whom, does not appear. Neither of these persons in his representative capacity is before the court. As two

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