Decatur Democrat, Volume 47, Number 1, Decatur, Adams County, 12 March 1903 — Page 2

THE HOLTHOUSE DITCH. Judge Erwin, Thursday, rendered his decision in the famous Peter Heithouse, ex parte, ditch case, which was begun in the circuit court here on Wednesday morning, November 19, and continued twenty-five days, being one of the hardest fought legal battles in the county’s history. The petitioner, Peter Holthouse was represented by Attorneys R. S. Peterson. Schafer Peterson, C. J. Lutz and J. C. Moran and the remonstrators by D. D. Heller & Son and Merryman & Sutton. Judgment for costs’ was rendered against the petitioner. A complete history of the case is given in the judge’s decision which follows in full as read this morning: This is an action began in the commissioners’ court of Adams county, Indiana, by a petition filed in the regular order by Peter Holthouse on the 17th day of August, 1901, praying for the construction of a drain or ditch beginning at a point which is fortyeight (48) rods south of a point forty (40) rods east of the northeast corner of section four (4) in township twentyseven (27) north, range thirteen (13) east in Adams county. Indiana; running thence down and along the meanderings of a ditch or water course, heretofore located and known as the Pete Holthouse ditch, to the St. Marys river, and there terminates at a point sixty (60) rods east of a point which is forty (40) rods south of the center of section twenty-eight (28), in township twenty-eight (28) north of range fourteen (14) east in Adams county, Indiana. To this petition various and ntimer ous parties interested filed before said commissioners, on the 4th day of December, 1901, a lemonst rance against said proposed improvement and such proceedings were had therein as that the said commissioners did, on the 18th day of February, 1902. make an order establishing said proposed drain. From this action of the board the remonstrators have appealed to this court. One question raised in this court is, that no assessments were made by the viewers or reviewers for the purpose of raising funds for the construction of the drain. It will not be necessary for the court to decide what effect the failure to make such assessment would have had had there been no appeal. In the case of Manor vs the Board of Commissioners of Jay county, de cided in the 137 Indiana, page 367, the same question was raised but in a different manner. In that case the committee appointed to make assessments did so without an actual view. The supreme court says, in passing on a petition for a re hearing. “We held, in the original opinion, that the report of the committee was superseded by the appeal, and that it did not make any difference how the committee reached their conclusions, whether by proper or improper methods,” and they cite in support of that proposition Black vs Thomson, 107 Indiana, 162, and other authorities. It matters not how irregular the proceedings were on the part of the viewers or reviewers, the proceedings were vacated by the appeal to the circuit court, where the case stood for trial de novo and not, as in an appellate court for the review and correction of errors. McMullen vs state ex rel, 105 Indiana, p 334; Fleming vs Hight. 95 Indiana, 78; Munson vs Blake, 101 Indiana, 78. This cause being for trial de novo, then this court necessarily takes the cause as the board of commissioners took it originally, and acts the part of the commissioners, the viewers and reviewers and must pass upon the cause, not from actual view of the premises, as the viewers did, but from the evidence produced on the trial. To establish this proposed work it will be necessary for the court to find from the evidence in the cause, Ist, what amount of work there will be to do, and 2nd, what would be the cost of doing the proposed work according to the plans submitted in this cause. Tn this case it is shown by the evidence that from station 530 to station 772 there is all along, on both sides of the proposed drain, large amounts of growing timlter, in some places so thick, as one witness put it, “that a carp could hardly get through.” It has also been shown that on said portion of the drain there are large drifts of timber, stones and rubbish, yet with this condition of things shown to exist, there has been no evidence produced in the cause to show what amount of labor it would take to remove the timber, drifts or rubbish, or any estimate of the probable cost of same. Without the court knowing the probable cost of constructing the drain, cleaning the drifts and timber, etc., it would be impossible for the court to make assessments covering the same, The only evidence in the cause as to the probable cost of con • structing the proposed work is that of W. E. Fulk, who testifier! that there would be probably many cubic yards of dirt to lie removed and that tlie probable cost would lie twentyfive cents to thirty cents per cubic yard. However, a more serious matter confronts the court in this cause. In the map of the proposed ditch and the lands affected thereby, which map is a part of the evidence in the cause and is marked exhibit “B,” it is shown that the proposed drain enters and passes upon the southeast quarter of the southwest quarter of section thirty three (33,) in township twenty eight (28) north, range fourteen (14) east, and appearing on the map in the name of Rev. Joseph Rademaker and designated as the Catholic cemetery los and containing forty (40) acres. Tn the report of the viewers and reviewers, and the notice given, this land nowhere appears, nor is the

owner's name mentioned, neither does the description of the real estate appear in any of the proceedings as belonging to any person whatever. The map referred to and the description of the ditch show that the proposed drain enters upon and crosses this real estate. The statutes, under which this drain is sought to be established, requires that all persons upon whose lands the drain is to be established shall be made a party to the proceedings. This is done by giving the notice as required by the statutes. In the notice given in this cause there is no reference to this land nor to the owner of the same. In the case of Wright vs Wilson. 95 Indiana, commencing on page 408, the court, speaking through Judge Bert, on page 413, say, “An application to establish a ditch is in the nature of a proceeding in rem, and in order to authorize the court to make an order, the person upon whose land the ditch is to be constructed must be before the court, either by notice or by appearance, and unless they are, the court can make no valid order concerning them. This is elementary and is too plain to justify further discussion or the citature of authorities. The court in such case having no authority to make an order against such persons, it can make none against those who are before the court. The reason is obvious; the ditch is au entire thing, and in order to establish it, the court must have all who are necessary parties before it. Ordinarily any objection to the process, or its service, must be made before appearance to the action, and this rule applies in this case so far as the notice operates as a process upon the peisou, but not so far as it is essential to give jurisdiction to the subject matter of the action. The petition and the report of the viewers, together should show the land upon which the ditch is to be established, and the notice of the auditor should contain the names of the owners. This done, the court acquires jurisdiction to establish such ditch, but not a ditch upon the lands of some person who has not been made a party to the proceedings, and hence if such fact appears upon the trial, it bars the establishing of the ditch. Neither Bishop Rademaker or his successor in office have in any wiy been made a party to this act'on, either by notice actual or constructive, nor by appearance to this cause, nor is the land in question in any way re ferred to or mentioned. Why this particular piece of land should have been overlooked by the viewers in their report. I am unable to determine. The county map shows it, as does also the map prepared by the engineer of all the lands affected by the proposed drain, yet it nowhere appears in any description of the proposed drainage or any lauds affected thereby. If the notice and report showed that the southeast quarter of section thirty-three (33,) township twenty-eight (28) north, range fourteen (14) east, was affected by the drainage, or even if the same gave notice to the owner or some person in whose name the same appears, it might lie sufficient. I am under the impression that the reason the same has not been included in the report or notice is from the fact that the same is not upon the duplicate for taxation, and hence has been overlooked by all parties concerned and if the drain did not propose to pass over the land it would not be very material. But the proceedings being one, like the establishing a road or highway, a street or alley, to use a part of the land and convert it to the use of the public, the same could not be done under the constitution, unless bv due process of law. and that process not having been followed, it must follow that the same cannot be taken, and if it cannot be taken, no drain can lie established. It therefore follows, that the board of commissioners had no jurisdiction of the entire subject matter, on account of proper notice, for the reasons heretofore stated, this court could take no more jurisdiction than had the commissioners, and the finding must be for the remonstrators and against the proposed improvement. Will Johnson and Grant Ball of Peterson, were in town Friday afternoon, their business being to deliver to Lawyer Burt I.enhart a load of corn cobs. While other citizens have been worrying their brains over lowgas, coal shortage and other fuel hardships, old wise Burt has been saying nothing but burning cobs and by the w-ay they are said to be superior to any material either mined or manufactured when it comes to building a good hot fire. We do not make these statements to lieat Burt out of his monopoly for we are free to state that the boys who are furnishing him with this great fuel are his brother-in-laws. Peter Schindler, H. S. Michaud, Emil Erhart, Chas. E. Stauffer, D. N. Stauffer. Isaac Lehman, C. L. Simkins, Phil Schug, Abr. Boegly, Chr. Stengel, Amos Reusser, C. G. Eglv, Fred Neaderhouser and Fred Ellenberger, all of Berne, have organized what they are pleased to call The Concrete Block and Stone Manufacturing company. They have capitalized at $5,000 and have already purchased the ground for the factory and in a short time they hope to have it equipped for business. The manufactured product will be used for building blocks, the foundations and even the structures themselves. The field is large for an enterprise of this kind and if they reach a proper footing, it will develop into an institution of extensive proportions. The gentlemen connected with the enterprise are all made out of the right kind of stuff to make the venture a success.

Elmer Johnson shipped a fine load of heavy draft horses to Pittsburg Saturday. These are undoubtedly as fine horses as have ever been shipped from this city. They average about 1,400 pounds in weight, and six of the beet of them cost $173.50 each, which shows that the price of horses is much higher than for many years. Tn probate court before Judge. Erwin Saturday morning, George B Jones, guardian for Clarence C., and John Jones, filed his final report which was examined and allowed, and guardian discharged. Christian Eicher, guardian lor Ellen E. Moser and five others, filed his final report as to Christian Moser, which was allowed, and guardian discharged as to this party. Tn the George W. Hamma estate, Rose E. Hamma. admix, the personal property and real estate was ordered set off to the widow. Another electric line would like to come through Decatur and Adams county and the promoters who realize the benefits to be realized from a traction road through this section means are here and say they mean business. The party consists of Messrs. John H. Koenig and Willis Armstrong, it. Marvs, Ohio. B. A. Fledderyoham and W. H. Fledderyoham, New Knoxville, Ohio. They came to town yesterday afternon and registered at the Burt House. Two of the party left last Thursday, while the other two will remain here and proceed to secure right of ways on the proposed route. The line will run from Springfield to Rockford, from there to Chattanooga, thence to Salem and into this city on the pike road. From here they will run to Monmouth, thence to Fort Wavne on the old road. The line will be securer! at once if the franchises and right of ways can be secured and the product will then be financed and work begun as soon as possible. The gentlemen mean business and say this road will be the first through this county. They have employed H. H. Harruff of this city, who will assist them in securing their desired privileges over the proposed routes. Court business was transacted Friday morning as follows: Louis Sadler vs Edward E. Smith, bill of exceptions filed by plaintiff and made a part of the record, motion by the plaintiff to strike out each paragraph of plea in abatement on written reasons filed. Anderson Trust company vs Washington school township, separate answer by Washington township filed, rule to reply. Andrew J. Leedy vs L. G. Botkins, administrator, reply filed to answer, case at issue, jury empanneled and evidence heard, postponed until 3:30 this afternoon to await Mr. Adair of Portland. George W. Hamma estate, Rose E. Hamma, administratrix, petition was filed to set off personal property and real estate to widow-. Lewis A. Hart estate. Lafayette Rape admr.. application made for letters, bond filed and approved, letters issued and confirmed. The Leedy-Botkins case will in all probability be completed this evening and nothing of importance is scheduled for tomorrow. Next week, however, promises to be a busy one as several cases are set down for trial, among them being the Gregory vs. Gregory case, asking for a guardian for A. C. Gregory. Monday. Morten vs. Fravel and Barber vs. Glendenning are set for Tuesday. Bolds vs. Geneva Oil company, Wednesday, John D. Edwards vs. City of Decatur and State vs. Burley for Thursday. Os these several will not be tried, but its safe to say enough will be “doing” to keep things going pretty lively. After a bitter struggle covering two whole days, the board of commissioners Saturday decided the Geneva remonstrance cases by granting Preston E. Warner a license to sell intoxicating drinks. The decision was given in open court with the attorneys and other interested parties present. As summed up by the board the total number of names on the blanket remonstrance was 333. To offset this there were withdrawals to the number j of twenty-one and by evidence from the poll taken before the last general election fifty-two persons who signed the remonstrance did not exercise their right of suffrage by voting, and by deducting the fiftv-two, the withdrawals and the duplicates, it showed the remonstrators short thirty-four of a majority, and the case was decided in accordance with this line of reason ing. It seems that the supreme court of Indiana has not up to this time decided or drawn the line upon what constitutes a legal voter, and perhaps this case may be the means of briugiug such enlightment from this judicial throne. Heretofore, simply the number of votes cast in any precinct or ward has been taken as the basis of calculation. For instance, if there were 400 votes, 201 would lie the majority. This decision goes into the question and save that if a remonstrance is good, tne 201 must lie that portion of the 400 that actually voted. In other words, a man to be a legal voter must vote, and if he does not. his rights are forfeited, so far at least as to signing a remonstrance that takes from another citizen the rights and privileges to sell intoxicating drinks in compliance with the general provisions of the liquor law. As has been stated, the struggle was fierce. Evidence and arguments, both numerous and lengthy, were offered without interruption, and the two days thus spent quietly ended when the board handed down their conclusions, and for the present at least, their conclusions are what count. Commissioner Abnet dissented from the opinion of the other two members of the board. The case will be appealed to the circuit courfby the attorneys for the remonstrators, who are determined to fight the case to the bitter end.

Every time a wife lets herself ‘ look slack” on each of these occasions she hastens bv so much the approach of old age. ’For to be carefully dressed is to look young, and to look young is to be so. A woman s duty to her children that is the first and greatest of the claims on her attention, and the second and next in important is that she shall look as attractive as she ean. On these ham’ good looks and a happy home and a remote old age. Rudolph Schug, the cashier for the People’s Bank, makes the saatement that the doors of the new financial in stitution will open for deposits and all other kinds of banking business in April, and perhaps the first week in that month. Besides Mr. Schug in the management of the bank will be Albert Egley, a young man of good repute and standing of Hartford township. He is now located at Craigvile where he is managing the affairs of the Berne Hay and Grain company. The first fishing story of the season is at hand, and as a consequence five of Decatur’s most popular sportsmen are being liberally roasted for their part in the affair. Friday afternoon a well known farmer came to town and reported that the Daily creek east of town was alive with big fish that had been carried there by the river backing up on account of high water, and that he himself had captured three monster pike with his hands. .The news was kept quiet in order to prevent the entire population from taking advantage of this golden opportunity and a party consisting of Charles Colter, C. E. Neptune, C. K. Bell. N. C. Coverdale and Johnny Smith was organized. They made hurried preparations and at three o’clock the crowd left in a livery rig. the hire for which was several dollars, and with ample provisions in the way of barrels and boxes, to bring in fish enough to feed the entire population of Decatur. In due time they arrived on the scene and work began. Up and down the creek for three miles the boys traveled, dipping out the watei with their hands in vain endeavors to find something that would resemble a specie of the finny tribe, but not a minnow was in sight and the only game captured by the determined hunters was two dead possum, the ownership of which was claimed by Clark Coverdale on the grounds of the right of discovery; ’tie reported, however, that even he grew sick of his job before long and tnese proofs of a successful hunt were abandoned. After the boys had tramped the entire distance they stopped, tired, hungry and muddy individuals, for a council of war and Dr. C. E. asked from what source the information of the bountiful fish supply in that neighborhood had been derived. Only one member of the crowd seemed to know and he at once gave the name. As he did so a pale green, sickly smile of intelligence passed over the countenance of the other boys. Thev had been duped; silently they folded their tents, like the Arabs, and as silently stole away. Not a sentence passed their lips on the long return trip until ♦ hey alighted in this city, when Old, Foxy Smithy said: “Mum’s the word, and no one will ever be the wiser.” It’s queer, but even the leaves of the trees have ears. The report of Engineer A. J. Frost, in which he stated the particulars of the Elm street sewer survey, was filed with city council at Friday night's session, and accepted. As moved by Teepie, the sewer committee, which consists of Councilmen Peterson, Stetler and Fordyce, was instructed to have a report ready for the next meeting, which is to be held Wednesday, March 11. In this report the actual extent of deficiencies, as shown by the report of Engineer Frost, is to be valued and the same taken into consideration by the council as a whole, in their final disposition of the contract with those who constructed the -ewer in question. Engineer Frost L?ses his findings from a survey aidjed by measurements at manholes. fLefollowing from his report shows the extent of variations: “Shamp Sewer I find to be as follows: Ist. manhole at station O, the flow line is three tenths foot above grade; 3rd manb"le. flow line is three feet above grad sth manhole, flow line is fourtenthj foot above grade. Main sewer: - The first manhole at station A. is three tenths of a foot above grade; 7th manhole is correct; 13th manhole is two feet above grade. At first manhole, on Shamp sewer, I find six inches of water standing in said man hole. I find no water standing in other manholes. I also placed on profile with the city clerk, the present flow line of the sewer in blue ink. marked Exhibit A.” The profile of the sewer, which includes the measurements made in the recent survey, are on file with Clerk Hower and mav be examined by anvone interested. The assessments against the property affected by the sewer, will not be made until a final settlement is effected with the constructors. The councilmen will then lie preparer! with all possible facts that bear upon the rendering of an equitable and satis factory adjustment of the difficulties ,that are now at issue. After allowing Mr. Frost fifteen dollars for his services the sewer question was dropped, and other pending business brought up and considered. Erastus Fritzinger petitioned a small amount of money due him for the construction of the Lister sewer, which he was unable to collect from a property-holder but his petition was ignored. The question was asked whether or not it was lawful to work those fined in the city court for misdemeanor and it was found that the action is supported by city ordinance as well as state law.

Tho Oldest, the Largest and the Best! 1 ~ INDIANA MEDICAL AND - J > SURGICAL INSTITUTE. Jjf 10 W. Wayne Street. .... The only legitimate medical instffiiu \ 7A Clty ‘ Established in 1878 F'l D.W.TiiCKer.A.M.M.ii. Iw ( L d Secretary American Association Medi . -3 cal aud Surgical Specialists, tl, e -T* ) ablest specialist in the country, W j|] f t--x r_ /v -r- . LD E£ A T U R AN HONEST DOCTOR. AT THE BUR.T HOUSE Thursday, March 19, 1903 Dr. Tucker has treated more cases of Chronic Diseases than any otter three doctors in the state. THIRTY YEARS EXPERIENCE. Dr. Tucker has treated 63,020 patients in the state of Indiana since 1872 and with perfect success in every case. A STRONG STATEMENT. Dr. Tucker has deposited SI,OOO in bank as a forfeit that he has treated more cases of chronic diseases and has performed more remarkable cures than any other three specialists in the state of Indiana. New methods of treatment and new remedies used. All chronic diseases and deformities treated successfully — such as diseases of the brain. Lean, lungs, throat, eye and ear, stomach, liver, kidneys, (Bright’s disease.) bladder, rectum, female diseases, impoteney. gleet, seminal emissions, nervous diseases, catarrh, rupture, piles, stricture, diabetes, etc. Consumption and Catarrh can be Cured. Cancel's and all Tumors cured u ilhoUt pain or the Use of a Knife. As God has prepared an antidote for the sin-sick soul, so has He prepared antidotes for a disease-sick body. These can be found at the Indiana Medical and Surgical Institute. After an examination we will tell you what we can do for you. If we cannot benefit or cure you, we will frankly and honestly tell you so. Patients can be treated successfully at a distance. Write for examination and question blanks. Street cars and carriages direct to the institute. No incurable cases taken for treatment. All cases guaranteed by bank endorsement Dr. Tucker has a cure for epilepsy. Examination and consultation free. Address all communications Dr. D. W. Tucker, FORT WAYNE, ————INDIANA.

William Waddell, a Clover Leaf brakemen who was injured at Curryville about two years ago by a fall from a ear, is said to have sued the railroad company for damages in the sum of SIO,OOO. Waddell was on top of the train when he fell in some manner and seriously injured his foot and back. It was thought at the time he was pretty badly hurt and be claims that he has been unable to work since the accident. Waddell’s home is at Sycamore and he is generally known among railroad men as "Sycamore Bill.” A brakeman who was subpoenaed as a witness in the case went through here this week and he stated that the case was set for a hearing in Frankfort next Tuesday. ...Legal A'iYtrilsing... APPOINTMENT OF EXECUTOR. Notice l« hereby given that the undersigned has been appointed Executor of the estate of Janob F. Binder, late of Adams county, deceased The estate is probably solvent J r . „ JSRAIL RENDER. Executor. February 21, tana, 51.3 I|XAl ' ' of Noticels hereby given to the creditors, heirs and legatees of Lucian Dunbar.deceased to appear In the Attains Circuit Court, held it Decatur. Indiana, on the 21st day of March. ItOI. and show cause, if any. whv nr'.lma accounts with t..- estate yecedant should not lie approved -.nd -aid heirs ar. notified to then and there make tlvS’slmies'” ‘“' a “ d ' thelr dll'n,'UißtrgHsog Dvkbar, Administrator. Decatur, Indiana, February 26.1308. 52-2 N T< 'state f FISAI, BETTL EMENTOFEB V i!^. h ; final settlement accounts won'll' * IJr said decedent shoo ,n, T h said heirs are notlfie tS t hJn an P , P .7’ V< ‘ ,1: sn ' l ’--■l—fiSX" 1 Peterson & France. Attorneys. jg., Fthe county asylum fol t for Ink March 1, !'«, u »rter cotumnneNothin,. Hardware. Ko«ds separately "k'll *hid, ,Or e * ch cl **"of the auditor's offfee mlu ", .TP-' "led tn a. m. on uw ,al< ‘ r than ten o'clock Monday, March 16,1908. Thu contract will la> 1 , resnonalble bidder t*> the lowest tlkfit to "Jwtiny indVa . bldderg will -ntract for the Adams County, Ind.

Notice of administrator? sale of real estate The undersigned, administrator de bon;* non of th. estate of Ferdinand Mier, dewiseu hereby gives notice that by virtue < f anorder of the Adains circuit court, be will offer Er sale at private sale at the law •ttice 4 Dore B Erwin, in Decatur. Indiana, on Saturday. April 4,1903, lietween the hours of 10o’clock a tn. k 4o’clock p. m.. on said day. and from day today thereafter until sold, the follow Lu dts-’ri t d real estate in Adams county. Indiana, to-wit The southeast quarter I*4l of the > utiiwp'’ quarter (Mi of section eleven (11.’ In townsh twenty-eight(2H» north, range thirteen (lien 1 containing forty <4O) acres more or less. Said sale will be made subject.totheap-pr-"\al of sai l >ull for not less praised value thereof and upon the followiu terms and conditions. TERMS. Ono-third cash In hand, one-third in nine months and one-third in eighteen months from date ot sale, evidenced by notes of the purchaser, bearing six percent? Interestff‘o date, waiting relief, providing for attorney * lees and secured by mortgages on said reti estate and by approved personal freehold *- curity. Christian Eickhoff. Adminbtrstor. D. B. and D N. Erwin, attorney’.. XTOTICE OF SALE OF REAL ESTATE State of Indiana, County of Adams. In the Adams circuit court. February tera--1908. Notice Is hereby given that Au n i’ tT ; trell. administratrix of the estate ..f ra. B-Cottrell, de«:v.as« d. will offer at private sale to the highest bidder, on Saturday, March 21. 1903, ut tip- Inw oflii-e of John €. Mi.ran. in thecW of Decatur. Indiana, the followingrea j id»i* to-wit: The southeast quarter of the quarter of section «-ightln tow n-hlp t' ty-tlve i2f>) north, range fifteen 11 ■>' a* l - w’ talnlng forty t-W) acres of land, lie w* r*" more or less. The terms of sale are a-follow’ b' *’) Ont-thlrd(H) cash In hand on dayo’-Jj on,-third "->) In six months and <im-'“i™t. In nine mouths: the purchaser togl'f’, Is-aring tlx per eent Interest payments, to tie secured by mortgxr’' freehold security. SP-d AMANDA COTTHXU--' Jm ’’ John Moran. Shaffer Peterson, atwrorf’ for administratrix. NOTICE OF COMMISSIONED S B*U |lf REAL ESTATE Notice Is hereby given, that signed. John Schurger. comml-" 1 " 11 ' Pointed by the Adams circuit “Lftiams county. Indians. In mi m-tl‘"i t- 1 tlon. being cause No. In which “ Scherry Is plaintiff, and Rosa Worllnfr W. Werllng. her husband. Luiy Charles Kintz, her husband. Knim* and harsh gcherry are defendant"- I ■. r , at public sale at the east door of' l ' ‘ „ house In Decatur. Adams county In 1 " Saturday, March 21.1908' between the hours of ten o'i'l's'h four o’clock p. tn. the following d* real estate, to wit: The west half of the smiths''" 1 '•“?J','nt< section twenty three (Sl.i In townrn'lin "even (2T) north, range thirteen 1 1 - 1 Adams county. Indiana Terms of sale: Ono third cash , 01 ’ I 1 ’ tnrS sale, one third In nine month" »»< . ro ,pf In eighteen months. Deferred to be secured by promissory >t if mortgage, said notes to bear inn n. rate of six per cent, from date of M-d JOHN SC HVRGKK. ComB»’“‘“