Chapman & Dewey Land Co. v. Wilson

• Decision Date: 07 June 1909
• Parties: CHAPMAN & DEWEY LAND CO. v. WILSON.
• Court: Arkansas Supreme Court

120 S.W. 391

CHAPMAN & DEWEY LAND CO. v. WILSON.

Supreme Court of Arkansas.

June 7, 1909.

Appeal from Mississippi Chancery Court; Ed. H. Mathes, Chancellor.

Suit by R. E. Lee Wilson against the Chapman & Dewey Land Company. From a decree for plaintiff, defendant appeals. Modified and affirmed.

W. J. Lamb, Ashley, Gilbert & Dunn, and R. S. Rodgers, for appellant. J. T. Coston, for appellee.

FRAUENTHAL, J.

The plaintiff, R. E. L. Wilson, instituted this suit against the defendant, the Chapman & Dewey Land Company, in the Mississippi chancery court, to recover the amounts of certain assessments made against the lands of the defendant for the construction of a public ditch or drain in a drainage district known as Tyronza Drainage Canal, and to enforce the lien thereon. The drainage district was established by the county court of Mississippi county under the provisions of sections 1203 to 1232 of Sandels & Hill's Digest. The complaint alleged in detail each step taken in the formation and establishment of the drainage district, the ascertainment of the benefits to the various tracts of land located in the district, and the assessment made against each tract for the construction of the ditch. It also set out in detail the letting of the contract for the construction of the ditch and its completion. The defendant filed an answer, in which it set forth several grounds upon which it resisted the recovery and enforcement of the assessments. The chancery court rendered a decree in favor of the plaintiff for the amounts of the various assessments against the several tracts of land of defendant and subjecting the lands to sale for the payment thereof. From this decree, the defendant appeals to this court.

The defendant attacks the validity of the order of the county court establishing the drainage district on the ground that the termini of the ditch were changed from the points as set out in the petition. Upon the filing of the petition, the county court appointed viewers, who proceeded in manner prescribed by the then law to make an accurate survey of the proposed ditch, and to perform the duties required by section 1204 of Sandels & Hill's Digest. The report of the viewers lengthened the ditch at its upper end, but maintained the route of the ditch as set out in the petition. It provided for excavations all along the route from said beginning point to a point where the ditch emptied into what is known as Tyronza bayou. This bayou extends for a distance of about three miles to where it empties into Tyronza river; and, while the route and extent of the ditch was described from the said beginning point on to Tyronza river, no excavations were reported by the viewers as necessary in said Tyronza bayou. But these alterations did not change the route of the ditch, and the lands of the defendant, being located between the terminal points, were not affected by the changes. In the formation of drainage districts under the above sections of Sandels & Hill's Digest, the original petition was not for the purpose of making a final location of the ditch. The viewers had a right to vary the same and all proceedings were of an ex parte character until the report of the viewers was made and filed. It was then that the exact location of the ditch was fixed; and each tract of land affected thereby, either by way of benefit or damage, was set out in the report. After the filing of such report thus definitely describing the termini and route of the ditch, notice was given to all persons interested in and affected by the location of the ditch of its pendency in the county court, and a time was fixed in the notice when such persons could appear in the said court and be heard. From any order or judgment made by the county court in the matter any person feeling himself aggrieved thereby could appeal to the circuit court, where he was given a trial de novo on the matters. So that the defendant had an opportunity to appear in court and be heard on these objections which he now presents. The county court had the jurisdiction of the matter of the construction of the ditch, and had the right and jurisdiction to adopt the termini recommended by the viewers which altered the terminal points of the proposed ditch. Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707; Driver v. Moore, 81 Ark. 80, 98 S. W. 734.

And, upon the confirmation of the report of the viewers by the court, the termini and route of the ditch became conclusively fixed. And the places where and the extent of the work and excavations that should be done in the construction of the ditch became also determined by the order confirming the report of the viewers in these particulars, as well as the assessments of the benefits made against each tract. Stiewell v. Fencing District, 71 Ark. 17, 70 S. W. 308, 71 S. W. 247; Overstreet v. Levee District, 80 Ark. 462, 97 S. W. 676; Driver v. Moore, 81 Ark. 80, 98 S. W. 734; Hale v. Moore, 82 Ark. 75, 100 S. W. 742; Bd. of Improvement Dist. v. Offenhauser, 84 Ark. 257, 105 S. W. 265. The Legislature provided that the drainage law should be "liberally construed to promote the drainage and reclamation of wet and overflowed lands; and amounts due contractors holding surveyors' certificates of acceptance shall not be defeated by reason of any defect in the proceedings prior to the order of the county court establishing the ditch, but such order or judgment shall be conclusive that all prior proceedings were regular and according to law." Acts 1899, p. 321. The report of the viewers determined that the excavations in the ditch should only be made along its route to the point where it made a junction with Tyronza bayou, and that it was not necessary to make any excavations in said bayou on to Tyronza river. The report in that respect was also confirmed by the court, and, being unappeased from, it became a final determination that the excavations that should be done should only be in that portion of the ditch that extended from its beginning point down to Tyronza bayou; that it would be practicable to construct the ditch and drain the lands in the district by that extent of excavations. In the opinion of the viewers and the surveyor and engineer who assisted them Tyronza bayou from the point where the ditch made junction with it to the Tyronza river was a natural stream sufficient in width and depth to carry all waters that would be emptied into it to the river without any excavations being made in said bayou. In the absence of fraud, that became conclusive. After the confirmation of the viewers' report, the county clerk proceeded to the letting of the contract. The defendant urges in this court that there is no proof that notice of the letting of the contract was given by the clerk. The complaint specifically and in detail sets out the notice that it alleges was given by the county clerk of the letting of the contract, naming the time and place of such letting, and stating the manner in which the notice was given. To these allegations the defendant made only a general denial in its answer. This court has often held that a general denial of the allegations of a complaint is not sufficient; and that, under the Code, every material allegation of the bill not specifically denied in the answer will be taken as true. Guynn v. McCauley, 32 Ark. 97 (105); McIlroy v. Buckner, 35 Ark. 555 (561). The object of this rule is to advise the opposing party as to what he must establish by proof. Hecht v. Caughron, 46 Ark. 132. The defendant did not in its answer deny specifically the material allegations of the complaint which set out the giving of the notice by the clerk; but, in addition to this, this court has held that, after the work has been duly completed under the contract, the failure to give such notice is only an irregularity, and it will not affect the validity of the contract. Stiewel v. Fencing District, 71 Ark. 20, 70 S. W. 308, 71 S. W. 247; Driver v. Moore, 81 Ark. 80, 98 S. W. 734.

It is urged that the plaintiff is not the proper party to bring this suit. It appears that at the letting of the contract the General Dredging & Construction Company was the lowest bidder on all the allotments of the ditch, and that the same was knocked off to that company, and that the clerk entered into a written contract with that company for the construction of the ditch. As provided by law, that company then executed a bond for the performance of the contract, and the plaintiff became surety on the bond. Thereafter the General Dredging & Construction Company failed to carry out said contract, and the plaintiff took up and assumed the performance of the same. In this way the plaintiff assumed the position of the General Dredging & Construction Company, and proceeded with the contract. As far as the defendant was concerned, it was as if the General Dredging & Construction Company had employed the plaintiff as its agent to perform the work and the requirements of the contract; and, in effect, it was that company going on with the contract. It is urged that, inasmuch as the contract was made with the General Dredging & Construction Company and the certificates were issued in its name, that company should have instituted the suit, or should have been made a party to the suit. But it is alleged in...