Sec. 65. (a) Not less than five (5) days before the board‘s hearing on a petition for a new regulated drain, any owner of land affected by the report of the county surveyor or by the schedules of damages and assessments may file with the board written objections to the report, schedules, or both. The objections may be for one (1) or more of the following causes:

(1) The proposed drain, as reported by the county surveyor, is not practicable and will not adequately drain the affected land. An objection on this ground must point out the impracticable aspects of the proposed drain and describe the specific lands that will not be adequately drained.

Terms Used In Indiana Code 36-9-27-65

  • Adjourn: A motion to adjourn a legislative chamber or a committee, if passed, ends that day's session.
  • Affected land: means land within a watershed that is affected by the construction, reconstruction, or maintenance of a regulated drain. See Indiana Code 36-9-27-2
  • Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
  • Board: refers to the drainage board of a county. See Indiana Code 36-9-27-2
  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Highway: includes county bridges and state and county roads, unless otherwise expressly provided. See Indiana Code 1-1-4-5
  • in writing: include printing, lithographing, or other mode of representing words and letters. See Indiana Code 1-1-4-5
  • Maintenance: means work on a drain as described in section 34(c) of this chapter for any of the purposes stated in that section. See Indiana Code 36-9-27-2
  • Owner: refers to the owner of any interest in land. See Indiana Code 36-9-27-2
  • Regulated drain: means an open drain, a tiled drain, or a combination of the two. See Indiana Code 36-9-27-2
(2) The costs, damages, and expenses of the drain will exceed the benefits that will result to the owners of all land benefited.

(3) The proposed drain will not:

(A) improve the public health;

(B) benefit a public highway in a county or a public street in a municipality;

(C) drain the grounds of a public school; or

(D) be of public utility.

(4) The objector is the owner of land damaged by the drain, and:

(A) the board failed to find that the objector’s land is damaged; or

(B) the damages assessed to the objector’s land are inadequate.

(5) The objector is the owner of lands assessed as benefited, and the benefits assessed against the objector’s lands are excessive.

Each objector may file written evidence in support of the objector’s objections. The failure of an owner to file objections constitutes a waiver of the owner’s right to subsequently object, on the grounds stated in this subsection, to any final action of the board.

     (b) On or before the day of the hearing, the county surveyor shall, and any owner of affected land may, cause written evidence to be filed in support of or in rebuttal to any objection filed under subsection (a).

     (c) The board shall consider the objections and evidence filed, may adjourn the hearing from day to day or to a day certain, and may issue an order permitting additional written evidence to be filed in support of or in rebuttal to the objections and evidence previously filed.

     (d) After considering all of the objections and evidence, the board may amend the schedules of damages and assessments, and the county surveyor may modify the county surveyor’s report, as justice may require.

     (e) Before final adjournment of the hearing, the board shall determine in writing:

(1) whether the proposed drain, as reported by the county surveyor, is practicable and will adequately drain the affected land;

(2) whether the costs, damages, and expenses of the proposed drain will be less than the benefits accruing to the owners of land benefited by the drain; and

(3) whether the proposed drain will improve the public health, benefit a public highway in a county or a public street in a municipality, drain the grounds of a public school, or be of public utility.

If the board finds the issues set forth in subdivision (1), (2), or (3) in the negative, it shall dismiss the petition. If the board finds the issues set forth in subdivisions (1), (2), and (3) in the affirmative, it shall adopt the schedules of damages and assessments, including annual assessments for periodic maintenance, as originally filed or as amended, into its findings, and issue an order declaring the proposed drain established. The board shall mark the findings and order filed and publicly announce them at the hearing. Immediately after that, the board shall publish a notice in accordance with IC 5-3-1. The notice must identify the proceedings and state that the findings and order of the board have been filed and are available for inspection in the office of the county surveyor.

     (f) If judicial review of the findings and order of the board is not requested under section 106 of this chapter within twenty (20) days after the date of publication of the notice, the findings and order become conclusive.

     (g) When the proposed drain is finally and conclusively established, the board shall allow the attorney for the petitioner the fee computed under section 61(8) of this chapter.

[Pre-Local Government Recodification Citations: 19-4-2-10 part; 19-4-2-13; 19-4-2-14; 19-4-2-15.]

As added by Acts 1981, P.L.309, SEC.101. Amended by Acts 1981, P.L.45, SEC.81; P.L.127-2017, SEC.353.

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