Hartzler v. County Commissioners

WARDEN, J.

David Hartzler instituted an action against the board of Commissioners in the Logan Common Pleas to enjoin them from constructing a ditch, petitioned for in the regular way, on the ground that its effect would be to remove a mill dam belonging to him. Hartzler’s demurrer to the second defense of the Board was sustained.

On appeal, Hartzler maintained that the only way a mill dam can be removed is under provisions of 6763 GC. et seq. and since the procedure outlined therein was not followed the proceedings are illegal and subject to an injunction preventing the construction of the ditch. The Court of Appeals held:

1. The proceeding for the construction of a joint county ditch under 6442 GC. was followed by the Commissioners; but 6573 provides proceedings in such case shall be the same as for single county ditch improvements; the exceptions contained in this chapter not affecting the property owner’s right to have damages assessed and the right of appeal.

Attorneys — Dow Aiken for Hartzler; West and Campbell & W. Clay Huston for Commissioners; all of Beliefountaine.

2. The right to remove a mill dam in a proceeding of this kind depends upon the construction of 6442 GC. wherein the word “land” is defined as including any estate or interest of any kind or nature in or to real property or any easement or right in or to real estate.

3. Section 6442 GC. is sufficiently comprehensive to include Hartzell’s right m the mill dam and its provisions offer one method by which a mill dam may be removed.

4. The method created in 6573 GC. is not inconsistent with that of 6442 GC. and it is not repealed by implication through the subsequent passage of the provisions for construction of ditches provided in 6442 GC.

5. The methods in either section might be followed, as would be warranted by the circumstances arising in each case.

Demurrer overruled.