Dorsey Land & Lumber Co. v. Board of Directors of Garland Levee District

• Decision Date: 01 April 1918
• Docket Number: 259
• Citation: 203 S.W. 33,136 Ark. 524
• Parties: DORSEY LAND & LUMBER CO. v. BOARD OF DIRECTORS OF GARLAND LEVEE DISTRICT
• Court: Arkansas Supreme Court

203 S.W. 33

136 Ark. 524

DORSEY LAND & LUMBER CO. v. BOARD OF DIRECTORS OF GARLAND LEVEE DISTRICT

No. 259

Supreme Court of Arkansas

April 1, 1918

Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor affirmed.

Action by the Board of Directors of Garland Levee District against the Dorsey Land & Lumber Company and others. Judgment for plaintiff, and defendant named appeals.

Decree affirmed.

W. H Arnold, for appellant.

Moore Burford & Moore, for appellee. Rose, Hemingway, Cantrell Loughborough & Miles, amici curiae.

MCCULLOCH C. J. HART, J., dissents from that part of the decision which holds that the description is sufficient.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1913, by special statute duly enacted, created an improvement district for the purpose of constructing a levee along the west bank of Red River in Miller County, and included in the district lands of a total area of about 53,000 acres on the west side of the river in that county. Acts of 1913, p. 1267. Nearly one-half of the lands embraced in the district were then and are now owned by the Dorsey Land & Lumber Company, a domestic corporation. The territorial boundaries of the district were described in the statute as beginning at a point where a certain section line intersects the west bank of Red River south of Garland Ark, "thence in a southerly direction and following the meanderings of Red River to a point where said line intersects the south line of section twenty (20), township eighteen (18) south, range twenty-six (26) west, thence north sixty (60) degrees west to the point in section nineteen (19), township eighteen (18) south, range twenty-six (26) west, where said line strikes the high ground or 'hills,' thence northeasterly, following the meandering of the line at the foot of the hills where the high land and overflow lands, or 'bottoms,' join, to the point where said line between the high land and overflow land intersects the section line between sections fifteen (15) and twenty-two (22), * * * township sixteen (16) south, range twenty-five (25) west, thence east along said section line to the point of beginning."

Another section of the statute conferred authority upon the board of directors of the said district to levee the west bank of Red River between the two points specified in the description, and discretion was lodged in the board of directors to decide upon the precise location of the levee "so as to protect as far as practicable, the property in the district above named." Section 4 of the statute provided for levying assessments for the purpose of raising funds to build, repair and maintain the levee. It was provided therein that:

"The Board of Directors of Garland Levee District shall have power, and it is hereby made their duty, to assess and levy annually a tax upon the valuation as it shall appear each year upon the real estate assessment book * * * upon all lands and tramroads in said district, and all natural gas or oil pipe lines within said district, and upon the railroad track of all railroad companies within said district as appraised by the board of railway commissioners; * * * but such tax on said lands, natural gas or oil pipe lines, tramroads and railroad tracks shall in no year exceed the rate of ten (10) per cent. of the assessed valuation of said property within said district."

The statute also authorized the district to issue bonds for the purpose of borrowing money for use in the construction of the levee. The levee was located and constructed in accordance with the authority conferred by the statute and bonds were issued and sold.

The present action was instituted in the chancery court of Miller County by the Board of Directors of Garland Levee District against the Dorsey Land & Lumber Company and other delinquent taxpayers in the district to enforce payment of overdue assessments, and appellants resisted payment on the ground, among other things, that the statute creating the district was void because the description of the territory embraced in the district was so vague and imperfect that it was impossible to ascertain the true boundaries of the district. The method of assessment authorized by the statute was also assailed as being violative of the rights of the property holders.

The General Assembly of 1917 (Acts of 1917, p. 235) amended, or rather re-enacted, the aforesaid statute of 1913, with a slightly different description of the boundaries of the district, intending to correct and make definite what was supposed to be the imperfect description contained in the old statute. One of the sections of the new statute declared the purpose of the lawmakers to be to validate all of the proceedings under the former statute.

We will first discuss the question of the correctness and certainty of the description in the act of 1913, and as the conclusion reached on that question is favorable to appellee it will be unnecessary to discuss the amendatory statute subsequently enacted, for if it be found that the later statute changed the boundaries of the district it did not affect the validity of the district as originally formed, but the change took effect only from the date of the enactment of the new statute. It may be said, however, in passing, that if the new statute made any change in the boundaries of the district it was very slight and affects very little of the territory as originally described.

It must be readily conceded that unless the territory to be affected by an improvement scheme is described with sufficient certainty to put the property owners on notice the statute is void. Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269; Norton v. Bacon, 113 Ark. 566, 168 S.W. 1088, 168 S.W. 1088; Morgan Engineering Co. v. Cache River Drainage District, 122 Ark. 491, 184 S.W. 57; Heinemann v. Sweatt, 130 Ark. 70, 196 S.W. 931. On the other hand, if the description can be made certain by resort to extrinsic evidence to ascertain the location of the boundary points mentioned in the statute itself, either in express words or by necessary implication, the description is sufficient. In other words, if the language of the statute itself furnishes the key for the ascertainment of the boundaries then it is sufficient.

Two different imperfections are claimed to be in the language of the original statute describing the boundaries of the district. The first contention relates to that part of the descriptive words specifying the point where the line of the river bank intersects the south line of section 20. It is shown by the testimony in the case that Red River has made frequent changes in its course at and near this locality, but that it has never touched section 20. Appellee introduced in evidence what is called a soil map that is said to have been issued by the Federal Government in the year 1904, and this map shows the intersection by the river of the south boundary of section 20. The authenticity of this map, at least as correctly showing the location of the river, is not satisfactorily established. The government plats in the office of the State Land Commissioner of the lands in the township mentioned show that Red River ran considerably south of the south line of section 20 in the year 1841 when the surveys were made. The plats show, too, that Red River intersected the south boundary line of section 29, but that the west bank of the...