On Petition for Rehearing.
Myers, J.An ingenious argument is presented by the learned counsel for appellants as to the construction to be given the phrase in the drainage law, respecting the general *562remonstrance, “two-thirds in number of landowners named as such in such petition or who may be affected by any assessment or damages” (damaged), and it is urged, that it means that a remonstrance is sufficient if signed by two-thirds either of those named in the petition, or of those who are affected by an assessment for the drain, and if this be not so, it is asked what meaning, or intent is to be ascribed to the words “named as such in such petition,” and that by our original opinion we disregard these words, and legislate them out of the statute.
The argument is, that petitioners may name whom they please in the petition, and by notifying only those persons, place them alone on their guard, and, Should the silence of persons who do not legally know of the proceeding have the same weight as those who are notified, and actively approving, and the silent voice be as effective as the notified, active voice ? The contention of appellants is, that a remonstrance by two-thirds of those named in the petition is sufficient, irrespective of the number of those to be affected by the assessment, or damaged. That by giving remonstrators the alternative, the best interests of all will be worked out. The theory in this last particular is, that petitioners will know that by naming, and notifying as many as possible, the larger remonstrance will be required, and more publicity given. On the other hand, if the petitioners name in their petition a large number of people who are in fact not interested, this evil would be met by requiring the remonstrance to contain merely two-thirds of those who may in fact be affected by assessment, or damaged. We have put these questions as appellants state them.
1.
2.
Appellants’ argument in the last particular, proves too much. Under that theory, persons through whose lands a ditch may run might not be made parties, might not be benefited, but might be damaged. Yet they are necessary parties to authorize the construction of the drain through their lands, and on appel*563lants’ theory are powerless, except to remonstrate after a report is made, or to make themselves parties by some affirmative act. It is to meet such possible cases, as well as others, that the provision, is made for remonstrating by those who may be affected by any assessment, or damages (damaged) . If the number on the petition only is to be the guide, what use for adding the disjunctive phrase, because under .that theory parties perfectly well known, as likely to be affected, or in the language of the act, “who may be affected by any assessment or damages” (damaged) may be omitted from the petition, yet under appellants’ contention whether they will be “affected by any assessment or damages” must be postponed until a report is in, or they must come in affirmatively as parties. But it had been held under the act of 1885, which provided for remonstrance by two-thirds of those named in the petition resident in the county or counties, that when parties not named in the petition were brought in after report of the commissioners, remonstrances could not be filed by the original, and the new parties, even though they constituted two-thirds of the persons affected. Yancey v. Thompson (1892), 130 Ind. 585, 30 N. E. 630. This ease was followed on that point in Zumbro v. Parnin (1895), 141 Ind. 430, 40 N. E. 1085, and the doctrine was extended to hold that one may become a party within the ten days, on showing that his lands would be affected, and that he might join in a two-thirds remonstrance, and this case is cited in Cambria Iron Co. v. Union Trust Co. (1899), 154 Ind. 291, 296, 55 N. E. 745, 56 N. E. 665, to the point that it is the spirit of the code to let one not a party, and having an interest in the subject-matter of an action come in, for the protection of whatever right he may have. In Keiser v. Mills (1904), 162 Ind. 366, 69 N. E. 142, it was again held that parties brought in by the report for the first time, could not defeat a proceeding by a two-thirds remonstrance.
The statute conferring two-thirds remonstrance on per*564sons named as landowners in the petition continued until 1903 (Acts 1903 p. 504), when the right to a two-thirds remonstrance was omitted. It was restored in 1905 (Acts 1905 p. 456, §3), to apply to “two-thirds of the landowners affected as shown by such preliminary report. ’ ’ Under this act, as remonstrance came after the preliminary report, there was no need to name either those named in the petition, or - those affected as rightful remonstrators, for the report, fixed the status of all. When however in 1907, the subject was covered by a new act, the legislature presumably had before it, and in mind, the construction put upon former acts, and in order to give all a fair chance to be heard, provided in effect that all persons named in the petition, or likely to be affected by any assessment, or damaged, might come in affirmatively and remonstrate, and if they, so remonstrating constitute two-thirds of the landowners affected, under the showing they are able to make, the proceeding fails. Tn this way, every landowner resident of the county or counties counts one way or the other, and it must be apparent from the previous decisions, that that was what was intended, as in no other way can the wishes of a majority of those in interest be gathered, when as under this act, the remonstrance must precede the report. If landowners do not remonstrate within the twenty days, presumably they desire the drain, or at least are indifferent, but if two-thirds of the whole number actually affected, remonstrate, that is an affirmative assertion by a majoxdty of those in interest that the proceeding should be diseontiixued. But there may be nothing in the petition to show who are ixx fact interested, hence the obligation of remonsti’ators to show who are affected, and to show that two-thirds of those interested are objecting, and the intexxt of the statute was to enable that to be done.
The history of the laws, and the possibility under former acts, prior to 1903, made well and publicly known the fact of the institution of proceedings for drains through the then *565existing statutes, by which a few persons could override the wishes of the majority, and the present legislation ensued, as a protest against the practice. It is said that the purpose of the provision in the act of 1907 was to prevent petitioners from destroying the right of remonstrance by naming in the petition a large number of unnecessary persons. With just as much force can it be said that the purpose was to enable them to name as few as possible, and they friendly, and thus defeat remonstrance. The answer to it all is, that to correct the evils which had grown up, it was enacted to enable the courts to determine who were in fact interested and affected, and to act on that ascertainment. That it may be difficult of ascertainment is no answer to the provision; so may it be difficult on trial of a remonstrance for cause, to find when parties are or are not affected, but that does not lessen the right, for it may frequently happen that the controversy arises from that very uncertainty. We are quite content as to the correctness of our original conclusions on these points.
6.
It is urged that we were in error in the declaration that notice to a life tenant in whose name the property appears on the tax duplicate or record of transfer, is, under the drainage law, binding on remaindermen as privies in estate, and in law. The point should perhaps be somewhat more elaborated. The statute provides that notice to the party in whose name the property appears on the tax duplicate or transfer record, shall be sufficient to give jurisdiction to assess the land. It has been held that the life tenant and remaindermen must contribute to any such assessment made on their iand, in proportion to their interests, or equitably. Hay v. McDaniel (1901), 26 Ind. App. 683, 60 N. E. 729. The remaindermen are necessarily privies, that is, have mutual and successive relationship to the property itself, and they are privies in estate to the life tenant, because they succeed to the rights of the life tenant, that is, come into the same rights the life tenant now *566possesses, the enjoyment of which is postponed as to them, and both the life tenant and the remaindermen have an interest, and come in by virtue of an estate created by another, and are so connected with each other in the unity of estate, that they are all alike affected by the assessment, and proceedings, as by a mutual obligation, as related to the estate itself, and the remaindermen are estopped by that which estops the life tenant. Stacy v. Thrasher (1848), 6 How. 59, 12 L. Ed. 337; Coan v. Osgood (1853), 15 Barb. 583. On the other hand, the law imposes the burden on the land from the fact of notice to the person in whose name the property appears on the tax duplicate or record of transfers, irrespective of the actual ownership, or whether the person so appearing has any interest at all, but the law operating on the subject-matter establishes the privity as one of law, fixes the obligation, and implies and creates the duty of payment by those in actual interest. Brewer v. Dyer (1851), 61 Mass. (7 Cush.) 337; Carnegie v. Morrison (1841), 43 Mass. (2 Met.) 381.
Note. — Reported in 102 N. E. 136; 103 N. E. 440. See, also, under (1) 14 Cyc. 1036; (3) 36 Cyc. 1173; (4) 14 Cyc. 1047; (6) 14 Cyc. 1033-1035. As to the procedure for the establishment of drains and sewers, see 60 L. R. A. 161.The petition for a rehearing is denied.