Racer et al. v. Wingate et al. a distance of at least ten feet from each side of said ditch; the dirt excavated from said ditch was to be placed at least two feet from each bank of the ditch, and to have a slope of one foot to one foot in depth; that the bottom of said ditch was to be made smooth and level, and to have a uniform fall; that after the order of said court establishing the work, the same was referred for construction to one Jesse H. Dowell who afterwards resigned, and one Smith Casterline was appointed drainage commissioner in his place to superintend the construction. of said ditch; that said commissioner Casterline let the contract for the construction of said work to one Henry C. Paul, who gave bond for the completion thereof; that afterwards said commissioner Casterline resigned as such commissioner of drainage, and Charles A. Rhine, Esq., was appointed, by the court, commissioner of drainage, to take charge of and superintend said work; that under the direction, charge, and supervision of said drainage commissioner Rhine, the said Henry C. Paul dug, constructed and built the ditch in controversy; that the ditch was constructed over and along an old ditch known as Big Lick Creek, and at many places said old ditch had washed wider than the specifications; that in the construction of said ditch the banks thereof were not given a slope of one foot to one foot in depth, but the same were dug perpendicular, and from station 43 to station 363 the same was constructed from three to twelve feet wide in the bottom, and from station 363 to station 470 from six to eighteen feet wide in the bottom, and from station 470 to station 585, from 7 to 15 feet wide in the bottom; that the trees and stumps were grubbed out and brush and logs were removed at least ten feet from each bank of the ditch, the dirt excavated therefrom was deposited two feet from each bank thereof, but did not have a slope of one foot to one foot in depth; that in some places Racer et al. v. Wingate et al. along said ditch the banks thereof are wider in the center than at the top or bottom of said ditch, caused by washing of the same; that the whole of said ditch is dug and constructed a great deal larger than the original plans and specifications called for, but no extra cost was occasioned thereby; that the objectors and exceptors herein at all times, from the commencement of the construction of said ditch to the trial of this cause, have continuously objected, both to the contractor and commissioner of drainage in charge, to the manner and character of the construction of said ditch, and that the contractor and the commissioner have at all times had knowledge of such objections; that said ditch has a uniform fall from upper to lower end thereof; that said exceptors are, each of them severally, owners of land affected by the said ditch, and assessed for the construction thereof; that all of said ditch, except 4,300 feet, is open ditch, the 4,300 feet being tile ditch at the upper end thereof, which tile part was made under the order and direction of the court, and without objection by any one, and which tile part has been fully completed as ordered by the court; that such open ditch, as constructed, has been completed by the contractor. "JNO. M. SMITH, Special Judge." And the court states, on the above facts found, as its conclusions of law: "1st. That the report of the commissioner of drainage should be confirmed by the court." The assignment of errors questions the correctness of the conclusion of law. The only reason assigned in appellants' brief why the conclusion of law is incorrect is, that the findings of fact show that the ditch was dug or constructed a great deal. deeper and wider than the plans and specifications cail for, and that the banks were dug perpendicular instead Racer et al. v. Wingate et al. of having a slope of one foot to one foot in depth, and that the dirt taken out of the ditch and placed on the banks was not given the same slope, all of which was required by the specifications. It was said by this court, in Smith v. State, ex rel., 117 Ind. 174, that "Those who pay the assessments have the right to insist upon the construction of the work as it has been established by the report of the commissioners, and by the judgment of the court." But the work here has been more than completed. The deviation from the plans and specifications consists chiefly in doing more and a greater work than was required by the plans and specifications, and that without adding anything to the cost of the work to those whose lands are to be assessed to pay for it; that is, the ditch has been made deeper and wider than the contractor need to have done, but the cost is no greater than if the work had stopped at the line of the plans and specifications. It is difficult to see how the appellants are injured by such excess of work for their benefit. If such excess was an injury to them in any way, that was a question of fact which it was incumbent on them to make manifest; the burden of showing that fact was upon them. In such a case, a failure to find either way is equivalent to a finding against the party having the burden of proving such fact. Henderson v. Dickey, 76 Ind. 264; Graham v. State, ex rel., 66 Ind. 386; Johnson v. Putnam, 95 Ind. 57; Parmater v. State, ex rel., 102 Ind. 90; Glantz v. City of South Bend, 106 Ind. 305; Louisville, etc., R. W. Co. v. Hart, 119 Ind. 273. The apellants had the burden of that issue, because they alleged the fact in their exceptions affirmatively, and because the presumption is that the judgment of the court below is right until the contrary is made to appear affirmatively in the record by the party assailing it. Racer et al. v. Wingate et al. Myers v. Murphy, 60 Ind. 282; Hunter v. Thomas, 37 Ind. 145; Lime City Building, etc., Assn. v. Black, 136 Ind. 544; Ferguson v. Hull, 136 Ind. 339. Having failed to show, by the special finding, that the excess of work was an injury to them, and as the finding necessarily shows that all the work was done that was required by the order of the court establishing the ditch, they fail to show any available cause for complaint. The failure to give the ditch and the dirt deposited on the banks thereof the required slope may present a somewhat different question. We are asked to hold as matter of law, and the prevailing opinion accordingly holds, that such departure was injurious to the ditch, or rendered it less useful and valuable for the purpose designed than if the banks and the dirt deposited thereon had been sloped, as required by the specifications and order of the court. With great respect for the opinion of my brothers I can not agree with them in that conclusion. I concede to the fullest extent that courts ought to, and do, take notice of the usual course of nature and its manifestations that belong to the class of uniform occurrence and common notoriety. I concede, too, that water washing against a perpendicular bank in a ditch will be liable to wear the bank so that it would become concave in shape. To what extent this effect may be produced depends largely on the kind of soil through which the ditch is cut. There is nothing in the special finding showing the kind of soil, whether it was loose, sandy loam, hard pan, or hard clay. Without such information this court could not judicially know much about its tendency to wash and wear. I concede, too, that such washing will have a tendency to cause the bank to crumble and fall into the ditch. But I do not think it follows that the courts can Racer et al. v. Wingate et al. judicially know that such crumbling and falling would materially obstruct the ditch. Especially is that so in this case. If the special finding of facts showed that the ditch had been cut so deep that the perpendicular banks were fifty feet high then I concede that this court might take judicial notice that the usual course of nature in causing such banks to crumble and fall would very likely obstruct the ditch. But no such state of facts is shown in the special finding. On the contrary, the special finding fails to show how deep the ditch was required to be dug, or how deep it actually was dug, or how deep it actually was at the time of making the report in question. The ditch was to have been constructed from station 585 to station 470, four feet wide in the bottom, but it was actually made 7 to 15 feet wide. Now, suppose as a matter of fact, that where it is 15 feet wide the banks are no more than four feet high, that is, the ditch but four feet deep there, which would be as deep as is ordinary in such ditches. Can this court adjudge, as matter of law, that such banks, in the usual course of nature, will crumble and fall so far as to obstruct the whole 15 feet in width, or far enough to make the channel of the ditch narrower than four feet? To suppose that they would go that far would be to suppose that nature would make a very great and extraordinary land slide. It would be to suppose that each four foot bank would fall and spread over the level surface of the bottom of the ditch a distance of 5% feet from such bank. Thus making each bank spread 11⁄2 feet wider than it is high and the two four-foot banks fall and cover a space of 11 feet in width on a level. I do not believe that such banks would or could, in the course of nature, fall and cover that much level surface |