Evening Republican, Volume 22, Number 148, Rensselaer, Jasper County, 24 June 1919 — Abstracts of Opinions Handed-Down June 20, 1919. [ARTICLE]

Abstracts of Opinions Handed-Down June 20, 1919.

Drainage—Remonstrance* —Prima Facie Case. 23462. Austin O. Moore vs. John P. Ryan et al. Jasper C. C. Reversed. Willoughby, J. (1) . This is the second appeal of the same case, the former appeal being reported as Thompson vs. Ryan, 183 Ind. 232.' After the ease was reversed the cause proceeded and appellant filed a remonstrance on the ground that the assessments of benefits were greater than the benefits to the land. On the trial of the remonstrance the only evidence to support the assessments was the report of the ditch commissioners, while appellant testified that the assessments were $941.30 greater than the actual benefits. The court holds that the presumption and prima facie case made by the report of the commissioners disappears upon the bringing of any substantial evidence, and can not stand against the sworn testimony of the appellant as to actual benefits, the court saying: “The presumption growing out of a prima facie case remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears and, unless met by further proof, there is nothing to base a finding solely upon it.” The court quotes from a case saying that the jury either took the report of the commissioners as evidence to overcome the testimony of appellant as a witness or ignored the testimony of appellant, neither of which they had a right to do. (2) The report of the commissioners provided that the contract should be let under a provision that the contractor should maintain the portions dug until the whole ditch was completed <and accepted and that the ditch commissioner should retain a sufficient amount of the contract price to insure the cleaning out and maintenance of the ditch until fully completed in all portions. The court says that it will not rule on the question of the authority to provide definitely that a certain per cent should be withheld for such purpose, but that a provision for leaving the amount to be withheld in the discretion of the ditch commissioner did not make, the terms definite as required by law, and that the report was contrary to law.