City of Bentonville v. Browne

• Decision Date: 19 May 1913
• Citation: 158 S.W. 161,108 Ark. 306
• Parties: CITY OF BENTONVILLE v. BROWNE
• Court: Arkansas Supreme Court

158 S.W. 161

108 Ark. 306

CITY OF BENTONVILLE v. BROWNE

Supreme Court of Arkansas

May 19, 1913

Appeal from Benton Chancery Court; T. H. Humphreys, Chancellor reversed.

STATEMENT BY THE COURT.

This appeal is a continuation of the case of Browne v Bentonville, reported in the 94 Ark., page 80. The waterworks improvement district was formed coextensive within the corporate limits of the city (then town) of Bentonville August, 1896. Appellee was then, and since continuously has been, the owner of a tract of land, consisting of about four acres, situated within the said improvement district. The city took over the waterworks plant, and has since continuously operated it under the authority conferred by section 5675 of Kirby's Digest. After the city took over the plant, it kept no separate account of the receipts derived, nor of the expenses incurred, in its operation. All of the city funds, whether derived from the waterworks plant or from other sources, were placed to the credit of the city's general revenue fund, and warrants were drawn against this fund by the city for all municipal purposes.

Appellee instituted a suit, the purpose of which was to compel the city to lay a four-inch water main to his property in order that he might have fire protection. As an incident to this suit, and for the purpose of showing that the city was able to construct this main, he undertook to show that the plant was being operated with great profit to the city, but that the city was using these profits for general municipal purposes. At the time of the installation of the plant, bonds were sold to pay for the cost of this improvement, which constituted a lien upon all the property within the improvement district, and appellee alleged that, in common with all other property owners, his property was burdened with this lien, but that he had derived no benefit from the waterworks, and would derive none unless the city was required to keep the accounts of the plant separate from its other funds, and be required to expend the net profits in the extension of the system, until all portions of the district had the benefit of the improvement. During the progress of that trial, much proof was taken upon the question of the cost of the plant, and the expenses of maintenance and operation, and of its receipts, and finally there was filed by the attorneys in the case, a stipulation that the income derived from the waterworks plant for the years 1898 to July 1, 1907, inclusive, exceeded the expenditures for all purposes in the sum of $ 1,000, and it was further stipulated that the income had equalled the expenditures since the last mentioned date. The court found in the original case that the income of the plant had been placed in the general revenue fund, and had been paid out for ordinary purposes, and that the sum of $ 1,000 had been received by the city in excess of the expenditures. The court had granted a temporary restraining order, which was made permanent, requiring the city to keep the funds separate, and to draw upon the funds of the waterworks plant by special warrants, showing upon their face for what purpose they were issued; and that only such warrants should be paid out of said fund, as were given for the payment of the expense of this plant. The city was ordered to pay over to the credit of the waterworks fund this sum of $ 1,000 not later than July 1, 1909, and it was also ordered that the city furnish appellee with a two-inch main to his residence; and that thereafter water be furnished him from this main, upon terms similar to that under which it was furnished other residents of the district. Both parties appealed from this decree, the appellee contending that the court should have ordered appellant to lay a four-inch instead of a two-inch main; and the city contending that it should not have been required to lay any main. Pending the appeal, the city constructed the two-inch main as directed by the decree, but this court held that the decree was erroneous in requiring the city to do so, but held that inasmuch as the decree had been complied with, it should be affirmed, and such was the order of the court. The purpose of that suit manifestly was to compel the city to lay the four-inch main, and the other questions involved were collateral to that, and no other feature of the case was discussed in the opinion of this court.

On the 8th day of December, 1910, appellee was permitted by the court below to file a complaint and motion in that original...