Arkansas Land Development Co. v. Bayou Deview Drainage District No. 1

• Decision Date: 16 October 1916
• Docket Number: 185
• Citation: 189 S.W. 48,125 Ark. 388
• Parties: THE ARKANSAS LAND DEVELOPMENT COMPANY v. BAYOU DEVIEW DRAINAGE DISTRICT NO. 1
• Court: Arkansas Supreme Court

189 S.W. 48

125 Ark. 388

THE ARKANSAS LAND DEVELOPMENT COMPANY v. BAYOU DEVIEW DRAINAGE DISTRICT NO. 1

No. 185

Supreme Court of Arkansas

October 16, 1916

Appeal from Cross Chancery Court; E. D. Robertson, Chancellor affirmed.

Decree affirmed.

Partlow & Shane, for appellant.

1. The organization of the district is illegal, invalid and void for two reasons. (1) There is a variance between the descriptions of lands in the engineer's report and the maps filed with his report. 113 Ark. 566.

2. The amended petition was filed and the engineer was appointed and his report filed on the same day, viz.: April 12, 1915. It is apparent that no proper or sufficient survey could have been made. Acts May 27, 1909, p. 829, as amended by Act April 28 1911, p. 193. This was a case of unparalleled celerity. Acts fixing a lien on lands should be strictly construed and the acts of all officials closely scrutinized, as the highest faith and most efficient service is required.

Burr & Stewart, for appellees.

1. The variance is not fatal. The case 113 Ark. 566 does not apply. 179 S.W. 339. This is a collateral attack.

2. The other objection is not tenable. Every requirement of the act was complied with. The record shows this and the district was legally organized; the court properly so held.

OPINION

MCCULLOCH, C. J.

Appellant owns land affected by the organization of the drainage district designated as Bayou DeView Drainage District No. 1 of Cross, Jackson and Woodruff counties, and instituted this action in the chancery court of Cross county attacking the validity of the organization. The chancery court sustained a demurrer to the complaint and rendered a decree dismissing it when appellant declined to amend.

The first point of the attack is that the engineer appointed to make a preliminary survey and report filed both a report and a map of the territory, and that the report embraced a description of lands not shown on the map so filed by the engineer. Counsel for appellant rely on the case of Norton v. Bacon, 113 Ark. 566, 168 S.W 1088, where it was held that a variance between the description of the lands on the plat or map and that given in the published notice was fatal to the legality of the organization. There is, however, a different statute to be dealt with in the present case, and it contains no requirement for the filing of a plat or map.

The statute (Act No. 279 of May 27, 1909, p. 829, as amended by Act No. 221 of April 28, 1911, p. 193) provides that the engineer appointed by the county court shall "proceed to make a survey and ascertain the limits of the region which would be benefited by the proposed system of drainage; and such engineer shall file with the county clerk a report showing the territory which will be benefited by the proposed improvement, and giving a general idea of its character and expense, and making such suggestions as to the size of the drainage ditches, and their location as he may deem advisable." Nothing is said in the statute about the engineer furnishing a map. It is provided that the clerk shall then give notice "calling upon all persons owning property within said district to appear before the court on some day to be fixed by the court, to show cause in favor or against the establishment of said...