tion is presented, and before the appointment of viewers. Whether the petition was signed by twelve freeholders, six of whom resided in the immediate neighborhood, etc., was jurisdictional, and the finding of the commissioners on that subject was conclusive." The hearing afforded, under the law, to landowners, is not designed to permit those interested to make a partial resistance, and to remain silent as to errors in the proceedings which, upon motion, could be corrected, and when they have taken the chances of success upon their partial resistance, and when the petitioners have been taken to the court of last resort, where such errors cannot be corrected by amendment, but the costs of the entire proceeding must be visited upon them, to then, for the first time, raise an objection that any such error exists. If such practice were permitted, instead of establishing and promoting a just system of procedure, the rule would constitute an unjust method of delaying public improvement, and of burdening with the cost of litigation those who institute such proceedings. None of the defects suggested, as to the order to view, as to the report of viewers, nor as to the failure to appoint second reviewers, which we learn from the argument to be the other objection raised by the fourth assignment, even if such were authorized, should have passed through the commissioners' court and the circuit court, and remained unchallenged until they had reached this court, when, by the vigi. lance of the appellant, they could have been cured in the earliest stages of the proceeding. As we have shown, the board acquired jurisdiction of the proceeding; the appellant's appearance was general; her only objections were as to the utility of the road and the damages she might sustain; the or der establishing the highway contained enough, aside from the condition as to the payment of damages, to fix the location, width, and termini of the road. If there were irregularities in the intermediate proceedings, and the appellant, without objection thereto, appealed to the circuit court, and there again submitted only the questions of utility and damages, such intermediate irregularities should be deemed waived. By the rule that the questions tried before the board are tried de novo in the circuit court, the inquiry of this court is necessarily limited to the questions tried in the circuit court, unless it is found that the proceedings of the board were wholly void. The eighth cause of error assigned, the overruling of the motion for a new trial, is next urged by the appellant. In support of the motion were filed numerous affidavits charging misconduct of parties and of jurors, and counter affidavits in denial and in explanation of such charges. These, it is practically conceded by counsel for appellant, are not in the record by bill of exceptions, and therefore present no question for review by this court. The weight of the evidence is discussed, and we are urged to pass upon it. As to the question of the public utility of the proposed highway, there is much evidence, and, in parts, sharp conflict. There is evidence which, if standing alone, would support the conclusion that the road was of public utility. This evidence we must accept as supporting the verdict upon that question, as we cannot weigh the evidence, to determine conflicts, and pass upon the question of its preponderance. As to the question of appellant's damages, an entire failure of evidence would be fatal to her claim, since the burden of that issue rested upon her. The evidence offered by her, however, was met and opposed by much evidence from the appellees; and we are not, as we have said, at liberty to weigh the conflict. It is further urged that there was a failure of proof, in that there was no evidence of the statutory qualifications of the petitioners, and that, as the cause should have been in the circuit court, such qualifications were in issue. To this trial de novo contention are cited Reynolds v. Shults, 106 Ind. 291, 6 N. E. 619; Clift v. Brown, 95 Ind. 53; Schmied v. Keeney, 72 Ind. 309; Coyner v. Boyd, 55 Ind. 166; McPherson v. Leathers, 29 Ind. 65; Beeler v. Hantsch, 5 Blackf. 594. These cases, like many of those already cited by us, hold that in the circuit court the cause is tried de novo on the issues made in the commissioners' court. As we have shown, the only issues made in that court were as to the utility of the road and the damages claimed by the appellant, and other issues were waived. Objection is made that the appellees introduced in evidence the petition for a highway in another proceeding. At the point in the record where this petition appears to have been read, and on objection by the appellant to the introduction of the petition in this proceeding, the court ruled that the petition and remonstrance were in evidence by force of law, and without formal introduction. Thereupon, and without further objection or an exception, the appellees read in evidence such petition. The record of another petition than that in review is explained as arising from an error of the stenographer in copying the wrong document; but it seems to be unimportant, since no exception was reserved, and, in our opinion, it could not have been harmful. No prejudice of the rights of the appellant by reason of the reading in evidence of such petition is suggested, and we observe none. Complaint is made of the giving of three of the court's charges to the jury. The record does not disclose that it contains all of the instructions given to the jury. By the settled rule of practice in this state, the sufficiency of any instruction must be determined in the light of all of the instructions given; and, to make compliance with this rule possible, the appellant must make it ap pear from the record that all charges given are in the record. Board v. Nichols (Ind. Sup.) 38 N. E. 526, and authorities there cited. Two of the charges so complained of relate to the right of the jury to consider, as against any damages found, the value of any benefits which they might find also. Of this proposition, appellant's counsel says, "It is well understood that this is the doctrine prevailing in the courts of Indiana." We adopt this concession of counsel to show that his complaint seeks to overturn an established rule of law in this state, and that he is not harmed by the technical rule of practice which denies us the privilege of considering his complaint. In the oral argument it is insisted that the verdict found that the appellant sustained damages, and was insufficient in failing to specify the extent of damages sustained. The verdict should be construed as a finding that appellant sustained no damages. The form was evidently supplied by the court, and its blanks filled to suit the finding, and without erasing unnecessary words. The ninth and tenth causes of error assigned are earnestly pressed for a reversal of the lower court's judgment. It is said that "no man's property shall be taken without just compensation" (article 1, § 66, Const. Ind.), "nor shall any state deprive any person of property without due process of law" (section 1, art. 14, Amend. Const. U. S.). The point is not made, and we do not stop to inquire, whether this argument may be made under this assignment, Instead of that upon the overruling of the motion for a new trial, or whether it should have been raised upon motion to modify the judgment. These propositions are urged upon the idea that benefits may not be considered in connection with any damages sustained by the property owner, in ascertaining what, if any, sum should be awarded to the property owner. As has already been suggested, appellant's counsel concede that, by the settled rule in Indiana, such benefits may be considered. McIntire v. State, 5 Blackf. 384; Vanblaricum v. State, 7 Blackf. 209; Railroad Co. v. Hunter, 8 Ind. 74; Hagaman v. Moore, 84 Ind. 496; Burk v. Simonson, 104 Ind. 173, 2 N. E. 309, and 3 N. E. 826. Some of the cases cited consider the question with reference to the first of the constitutional provisions mentioned. No reason has been given for the suggestion that "due process of law" is not afforded by the hearing provided by the statute to the property owner, and no reason has occurred to us. Finally, it is suggested that "the petition, though purporting to be for the laying out of a new road, was in fact for the lengthening and widening of an old road"; and it is said, "This cannot be done, under the law." Just what assignment of error raises this question, we are not advised. Judged from the purport of the petition, it would not appear to be for the purpose stated by appel lant. If the purpose were disclosed by the evidence, the argument does not suggest it, or make reference to where it may be found. If error, it is not available. Finding no available error in the record, the judgment of the circuit court is affirmed. (142 Ind. 123) KIRLAND v. BOARD OF PUBLIC WORKS ASSESSMENTS. 1. Under Rev. St. 1894, § 3830, authorizing a board of public works "to design, order, and contract for the improvement" of any public street, the board has authority to order the construction of a drain to carry off the surface water from a street. 2. Rev. St. 1894, § 3844, provides that portions of the improvement of a street which are uniform in extent and kind shall be apportioned to the property abutting on such portions of the street, by the running foot. Id. §§ 3857, 3858, provide that the assessment for sewers constructed for local use shall be according to the area of the private land benefited. Held, that an assessment for the cost of a sewer constructed as part of a street improvement, to carry off surface water, should be by the running foot. 3. The expression "resident freeholders," as used in Rev. St. 1894, § 3844, providing that on confirmation of an order for street improvement the same shall become final, unless, within 10 days, two-thirds of the "resident freeholders on such street" remonstrate against the improvement, includes only resident freeholders on that street. Appeal from circuit court, Marion county; E. A. Brown, Judge. Action by Antoinette Kirland against the board of public works of the city of Indianapolis and others for an injunction. From a judgment for defendants, plaintiff appeals. Affirmed. Chester Bradford and Miller, Winter & Elam, for appellant. Elliott & Elliott, D. W. Howe, and J. E. Scott, for appellees. HOWARD, C. J. This was an action for injunction, arising under a construction of the city charter of the city of Indianapolis. The assignment of errors presents for consideration the correctness of the court's rulings in sustaining the several demurrers of appellees to the appellant's amended complaint. From the complaint it appears: That on the 11th day of May, 1894, the board of public works of the city of Indianapolis adopted a resolution for the improvement of a part of West Washington street, in said city, upon which appellant's real estate is situated, "by grading and curbing and paving the roadway with brick on concrete foundation, and constructing drains or sewers and appurtenances thereto, according to the drawings and specifications set out in said resolution." That notice of said resolution was duly given. That remonstrances thereto were heard, and that on the 1st day of June, 1894, said resolution was confirmed by said board. That thereafter, within ten days, "two-thirds of all the freeholders, residents in the city of Indianapolis, owning property on such part of said street so to be improved, remonstrated in writing against such improvement." That said board, in disregard of said remonstrance, did not refer said matter to the common council of said city, but advertised for bids to do said work, and on July 6, 1894, did let the same to the appellee Daniel Foley, who is now proceeding with the same. "That in the plans, specifications, notices, and contract for said work, there is included, as a part of the same work, and under the same contract, the construction, underneath the part of said street so to be improved, for its whole length, a drain or sewer for the pretended purpose of carrying off the surface water from said street, which may fall thereon, or flow thereon from neighboring property and cross streets." Said drain or sewer is constructed of brick, is of varying size,-from 2 to 22 feet in diameter, -and is sunk from 4 to 9 feet beneath the street. Other drain pipe, also of smaller size, is placed under said street. That the additional cost of said improvement, caused by the construction of said drain or sewer, will be from 25 to 30 per cent. of the entire cost. That there is no provision in the statute for the construction of a drain or sewer such as that here provided for. That, whereas the statutes provide that persons assessed for the construction of sewers may use the same, yet it is not permitted that the property owners along said improvement use the sewer herein provided for. "That there is no pretense that said drain is constructed under any of the provisions of the city charter touching drains or sewers of any kind, but it is claimed by the board of public works of said city, and by the city engineer, that the same may be, and is to be, and is being constructed as an incident to and a part of the street improvement; that is, as an incident to the paving of said street with brick. And according to the plans and specifications, and the declared purpose, of said board of public works and of said city engineer, the entire expense of such sewer or drain, or whatever it may be called, is to be charged upon, and enforced as a lien against, the abutting property along the line of said sewer, by the front foot, and not according to the superficial area of said property," and not according to any other method provided by the statute for paying the cost of the construction of sewers. It is finally claimed that the building of such drain beneath the street, as a part of such improvement, and charging the cost to the property owners by the front foot, as in the case of street improvements, is without warrant of law, and should therefore be enjoined. By section 74 of the act of March 6, 1891, as amended by the act of February 22, 1893, being the act for the government of cities having a population of more than 100,000, and commonly known as the "Indianapolis City Charter" (Acts 1891, p. 137; Acts 1893, p. 56; Rev. St. 1894, § 3845), it is provided that the cost of street improvements shall be assessed against abutting lands and lots, per running front foot, without regard to benefits to or area of such lands or lots. By sections 83-88 of the city charter, it is provided that the cost of the construction of sewers shall be assessed in certain cases according to benefits to, and in others according to area of, lands affected. It is evident, therefore, that under the statute it would not be lawful to assess the costs of a sewer upon the abutting lands and lots by the running front foot. The principal question in this case, then, is whether the drain described in the complaint is a sewer, as contemplated in the statute, or whether it is a part of the street improvement. By section 59 of the charter (section 3830, Rev. St. 1894) the board of public works is given very full powers over the streets, alleys, and public places of the city, among others. "to design, order, contract for, and execute the improvement or repair of any street, alley, or public place within such city." By section 73 of the charter (section 3844, Rev. St. 1894), it is proIvided that "whenever the board of public works shall order the improvement of any street, alley, sidewalk or other public place in such city, in whole or in part, it shall adopt a resolution to that effect, setting forth a description of the place to be improved, and full details, drawings and specifications for such work." What the improvement shall be is not defined by the statute. That is plainly left to the discretion of the board. The only limitation is found in the succeeding section,-that the cost shall be estimated according to the whole length of the street or alley, "or so much thereof to be improved as is uniform in the extent and kind of the proposed improvement," per running foot. Provided, then, the improvement is uniform in kind and extent, the board must say, by resolution, what that improvement shall be. The end to be attained, however, namely, the better preparation of the street for public travel, must evidently determine the nature of the improvement to be made. The mere grading of the street may be deemed sufficient in some instances. Afterwards it may be thought necessary to raise the center, or roadbed, and sink gutters along the sides, so as to make a drier and firmer highway. If the travel increases, graveling may be thought needful. Finally the board may be of opinion that the street has become so important a thoroughfare that it should be paved with brick or stone. If the ground were low and wet, it would seem that, in connection with any of these improvements, it might be necessary to draw the water from the street by gutters, drains, or otherwise, as the board should judge best. In this case, as stated in plaintiff's complaint, the board, by resolution, expressed its judgment to the effect that said street should be improved "by grading and curbing and paving the roadway with brick on concrete foundation, and constructing drains or sewers and appurtenances thereto." The uniformity of the whole work, as well as the particular purpose of the drain under the roadway, are likewise shown in the complaint, where it is said: "In the plans, specifications, notices, and contract for the said work, there is included, as a part of the same work, and under the same contract, the construction underneath the part of said street so to be improved, for its whole length, a drain or sewer for the pretended purpose of carrying off the surface water from said street, which may fall thereon, or flow thereon from neighboring property and cross streets." Certainly, no purpose is here indicated but the improvement of the street. Indeed, the complaint says elsewhere that the drain is not to be used as an ordinary sewer, no intersections or connections with house or other drains being permitted. It is therefore built exclusively for the improvement of the street, and not, except incidentally, as a sewer. There can be no doubt that the board had power, under the charter, to make the improvement as provided for in the resolution. Indeed, it would appear that the drainage of the street was a necessary part of the improvement. It may seem that it would have been better to have first constructed a sewer along the street, under the sewer provisions of the charter, and then lay the pavement under the provisions for street improvements, and doubtless this would be true generally. There is nothing shown, however, from which we may discover that the board abused its discretion in this case; and the course pursued, for aught that appears, may have been the wisest, under the circumstances. However that may be, it cannot be said that the draining of water from a street may not be a necessary part of the improvement, of such street. And in this case, as we have seen, the board was of opinion that such drainage was necessary. It has frequently been decided that a drain may be constructed in connection with other street improvements, and as a part of the same. Davies v. City of Saginaw, 87 Mich. 439, 49 N. W. 667; Murphy v. City of Peoria, 119 Ill. 509, 9 N. E. 895; Cone v. City of Hartford, 28 Conn. 363; Hastings v. Columbus, 42 Ohio St. 585; Bronson v. Borough of Wallingford, 54 Conn. 519, 9 Atl. 393; 6 Am. & Eng. Enc. Law, 19. See, also, Leeds v. City of Richmond, 102 Ind. 372, 1 N. E. 711; 10 Am. & Eng. Enc. Law, 282. It is further contended that the board had no authority to let the contract, for the reason that, in compliance with section 73 of the charter (section 3844, Rev. St. 1894), and within 10 days after the confirmation of the resolution ordering the work done, twothirds of all the freeholders residents in the city of Indianapolis, owning property on such part of said street so to be improved, remonstrated in writing against such improvement. The words of the statute are that, after the confirmation of the original resolution, the same shall be conclusive on all persons, unless, within 10 days thereafter, "two-thirds of all the resident freehold. ers upon such street or alley remonstrate against such improvement." Counsel for appellant argue that "resident freeholders" here means resident within the city, and owning property upon the street; while counsel for appellees contend that the words mean what they seem to say, namely, resident freeholders upon the street. We think the latter to be the evident meaning and intent of the law. After the adoption, but before the confirmation, of the resolution, provision is made for notice to property owners and others interested in or affected by the work, and for the hearing of remonstrances from them. Sections 63, 73, of the charter; sections 3834, 3844, Rev. St. 1894. After the confirmation of the resolution, 10 days additional are allowed, during which resident property owners upon the street may make further remonstrance. We do not think that a second remonstrance was intended for all persons within the city who might own property upon the street. The right to a second remonstrance was rather a favor to those most particularly interested, namely, the resident freeholders upon the street. The terms "resident freeholders" within, near to, along, or upon a given place, are frequently used in this and other statutes; and the meaning is usually limited to the locality so designated, unless some other signification is shown by the context. In the statute for the opening and improvement of highways (sections 6742, 6750, Rev. St. 1894; sections 5015, 5023, Rev. St. 1881), similar provision is made in favor of freeholders residing along the line of the proposed improvement. Other questions discussed by counsel need not, as we think, be considered. The injunction was properly refused. The judgment is affirmed. (143 Ind. 174) GLASSBURN et al. v. DEER et al. 1 (Supreme Court of Indiana. Sept. 25, 1895.) HIGHWAYS-APPEAL-RECORD-BONDS. 1. Rev. St. 1894, § 6754 (Rev. St. 1881, 5027), providing that any person aggrieved by the decision of the board of commissioners in laying out a highway may appeal therefrom, and that, in case proceedings be had in more than one county, the auditors of each county, on being notified of such appeal, shall transmit to the court to which the appeal is taken all the proceedings in such county, and upon the determination of such appeal such clerk shall notify the auditors of all the counties interested therein, does not make each appeal a separate case, which must be brought up on a separate transcript of the record. 2. Under Rev. St. 1894, § 6754 (Rev. St. 1881, § 5027), providing for appeals from any 1 Rehearing denied. decision of the board of commissioners in laying out a highway, and the filing by appellants of a bond with surety, a bond given by one appellant, with another appellant as surety, is sufficient. Appeal from circuit court, Johnson county; William A. Johnson, Judge. Petition by Willis H. Deer and others for the establishment of a highway. From a decision of the board of commissioners awarding damages, David Glassburn and others appeal. Miller & Barnett, for appellants. Leach & Barker, for appellees. MCCABE, J. The appellees petitioned the board of commissioners of Johnson county for the establishment of a certain public highway in said county, upon which viewers were appointed, who reported in favor of the public utility of the road. Appellants Cleveland and Cleveland filed their joint remonstrance against the public utility of the road. New viewers were appointed thereon, who reported in favor of its public utility. Appellant Glassburn filed a remostrance for damages, and the Clevelands filed a remonstrance on account of damages to them. Appellant Groseclose filed his remonstrance for damages. Reviewers were appointed by the board to assess damages, who reported assessing damages in favor of appellant Groseclose in the sum of $25. No other damages were assessed. The board approved the report, and ordered the highway opened on the payment of said damages by the petitioners. Appellants Glassburn, Groseclose, and the two Clevelands appealed to the circuit court. Glassburn and Groseclose each filed a separate appeal bond, with the same surety, John Hardin, on each. The two Clevelands filed a joint appeal bond with the same surety thereon as that on the other bonds, namely, John Hardin. On the motion of the appellees, the petitioners, the appeal as to Groseclose and Glassburn was dismissed by the circuit court, because they did not each of them file in the circuit court a separate transcript of the record and proceedings in the cause before the board of commissioners, but filed only one single transcript. This action of the circuit court is called in question by the assignment of errors here. The circuit court overruled appellees' motion to dismiss the appeal as to the two Clevelands, that motion being urged in that court on the same ground that the motion to dismiss as to Glassburn and Groseclose was urged. But the court, for some cause not disclosed by the record, appropriated the transcript to the benefit of the Clevelands, and retained their appeal thereon in court. Counsel inform us in their brief that it was done because the Clevelands were tenants in common in the lands owned by them and affected by the road. is contended by the appellants that any one or more of the parties to a proceeding to es It tablish a highway may appeal from the final action of the board of commissioners thereon, and, in case more than one appeals, it may and must be tried as one appeal, and hence only one transcript is necessary. The appellees, on the other hand, contend that, if more than one appeal, and file separate appeal bonds, and seek to retry questions affecting the separate interests of each,-as, for instance, a remonstrance for damages to the separate real estate of each,-the appeals must be separate, and can only be prosecuted by filing a separate transcript by each one in the circuit court. In support of this contention appellees cite Leffel v. Obenchain, 90 Ind. 50. The question there arose on a motion to dismiss the appeal in the circuit court for failure to file an appeal bond. In the commissioners' court, after a report of viewers in favor of the public utility of the road, nine landowners affected filed separate remonstrances denying the public utility of the road, and asking for damages in case of its establishment. Reviewers thereupon appointed reported in favor of its public utility, and assessed damages in favor of each remonstrator. Each then appealed to the circuit court, filing his appeal bond, with one of the other remonstrators as his surety thereon. Separate transcripts were filed, and separate cases docketed, in the circuit court. These were ordered consolidated, after which the petitioners moved to dismiss the appeal on the ground that an appeal bond had not been executed with surety, as required by statute. This motion was overruled, the cause tried, the road adjudged of public utility, and a larger amount of damages assessed to each remonstrator. there said: "Proceedings to establish a highway, when several remonstrances for damages sustained by each of them, constitute a single suit for some purposes; while for others they constitute separate suits. An issue formed by A. as to his damages affects him and the petitioners alone. For these reasons we think each remonstrator could appeal from his allowance, and that his bond was not bad simply because signed by some other remonstrator as surety." This is very far from holding that separate transcripts must be filed by each appealing remonstrator. The consolidation of the several appeals brought on separate transcripts in that case is a tacit recognition of the right of such several appealing parties to the circuit court to prosecute their appeals on one transcript. It was In Reynolds v. Shults, 106 Ind., at page 294, 6 N. E. 619, it was said: "In Schmied v. Keeney, 72 Ind. 309, it was held, as we have uniformly held, both before and since, that upon an appeal from an order of the county board, in a proceeding for the location of a public highway, to the circuit court of the county, the cause must be tried de novo; that is, all questions in issue before the county board on such appeal must be tried anew in |