
    DRAINS AND DITCHES.
    [Fayette (2nd) Circuit Court,
    June, 1906.]
    Dustin, Wilson and Sullivan. JJ.
    Charles Sollars et al. v. Mary Sever et al. Charles Sollars et al. v. William Ging et al.
    1. Petition to Altee, etc., a Township Ditch must be Presented to Township Trustees and They Refuse to Act before County Commissioners may Act Thereon.
    Tlie petition filed with a county auditor by an owner of land abutting on or benefited by a ditch located, established and constructed by a board of township trustees, to straighten, widen, alter, deepen, etc., such ditch, may not be considered or acted upon by the board of county commissioner-! until a similar petition has been filed with the board of township trustees ■and they have refused to act thereon.
    
      2. Petition eor Construction op Laterals and Alteration op onlt Part op-Township Ditch must First be Presented to Township Trustees.
    The fact that a petition filed with a county auditor, praying that the hoard of county commissioners widen and deepen a township ditch, contemplates the construction of laterals and the alteration of only a part of the-township ditch, does not make a petition for a new ditch-or an improvement rendering unnecessary a prior submission to the board of township, trustees.
    [Syllabus approved by the court.]
    ERROR to Fayette common pleas court.
    Post & Reid and Creamer & Creamer, for plaintiffs in error.
    H. H. Sanderson and F. A. Chaffin, for defendants in error.
   SULLIVAN, J..

Where a township ditch has been located, established and constructed by township trustees as provided by law, the commissioners of the county in which said ditch is located cannot acquire jurisdiction under Rev. Stat. 4447 (Lan. 7628), upon the petition of the owner of any lot or tract of land abutting upon, and benefited by, said improvement, to straighten, widen, alter, deepen, box or tile said ditch or any portion thereof, until the township trustees of the township in which said ditch has been established and constructed upon a petition filed with them to widen and deepen, etc., have refused to act under Rev. Stat. 4510 (Lan.. 7693).

If the commissioners act on a petition filed with the auditor, without such refusal be made to appear, all proceedings by them on such petition, will be a nullity.

The record in these cases shows that the ditch, for which the petition, was filed with the auditor to straighten, widen, etc., is a ditch theretofore-located, established, and constructed by township trustees, as provided by law, and that no application was first made to the township trustees, and that they refused to act. The fact that the petition filed with the auditor included laterals and only part of said township ditch does not constitute a new ditch.

Where proceedings are instituted to widen, deepen, etc., any ditch, drain, etc., if to accomplish the purpose of the improvement laterals are necessary, they are a part of the improvement, and therefore when included do not constitute an improvement different from that set forth in the petition.

The county commissioners, therefore, not having acquired jurisdiction over the subject-matter set forth in the petition filed with the auditor, the proceedings had by them were a nullity.

Being a nullity, the probate court acquired no jurisdiction over the-subject-matter on appeal, and hence all the proceedings had before said court were a nullity.

The common pleas court in reversing the judgment of the probate court entered a correct judgment, except it should not only have reversed the judgment of the probate court, but set aside the proceedings before the county commissioners, and dismissed the petition filed with the auditor. That court having failed to enter such judgment, the judgment of that court is affirmed as to the reversal of the judgment of the probate court, the proceedings before the county commissioners will be set aside, and the petition filed with the auditor by the petitioners for the improvement dismissed.

If the judgment rendered by the common pleas court includes costs of proceedings before the county commissioners and probate court, that part of its judgment is reversed; with that exception its judgment will be affirmed. The judgment of this court includes only the costs of the proceedings in error in this court and the cause is remanded to the common pleas court to carry the judgment into execution.

.Dustin and Wilson, JJ., concur.  