Dickerson v. Tri-County Drainage Dist.

• Court: Arkansas Supreme Court
• Writing for the Court: McCulloch
• Citation: Dickerson v. Tri-County Drainage Dist., 212 S.W. 334, 138 Ark. 471 (Ark. 1919)
• Decision Date: 19 May 1919
• Docket Number: (No. 222.)
• Parties: DICKERSON v. TRI-COUNTY DRAINAGE DIST. et al.

212 S.W. 334

DICKERSON v. TRI-COUNTY DRAINAGE DIST. et al.

(No. 222.)

Supreme Court of Arkansas.

May 19, 1919.

Dissenting Opinion June 9, 1919.

Appeal from Circuit Court, St. Francis County; J. M. Jackson, Judge.

Action by Fred R. Dickerson against the Tri-County Drainage District and others. Judgment for defendants, and plaintiff appeals. Affirmed.

C. W. Norton, of Forrest City, for appellant.

A. B. Shafer, of Memphis, Tenn., for appellees.

McCULLOCH, C. J.

Tri-county drainage district is, as its name implies, a drainage improvement district, and was established by order of the circuit court of Crittenden county pursuant to the general statutes of the state authorizing the creation of such districts. Acts 1909, p. 829; Acts 1911, p. 193; Acts 1913, p. 738. The district embraces lands in Crittenden, Cross, and St. Francis counties. Appellant is the owner of a certain tract of land situated in the district and in St. Francis county, and he instituted this action to recover the value of about 19 acres of land alleged to have been taken and used by appellee drainage district in the construction of one of the ditches which constitutes the drainage system authorized in the organization of the district. Appellee filed an answer in which appellant's ownership of the land was admitted, and it was also admitted that the land was taken for use in construction of the ditch, but other proceedings were pleaded in the answer as a bar to the right of appellant to recover compensation in this action. The court overruled the demurrer to the answer, and appellant elected to stand upon the demurrer, and suffered judgment to be rendered against him, from which an appeal has been prosecuted to this court.

The statute under which the drainage district was organized provides, in substance, that a drainage district may be created upon the petition of property owners, and that after the preliminary survey is made and filed showing the extent of the improvement, notice of the hearing shall be given by publication, and that on the day mentioned in the notice a public hearing shall be held by the court, and that owners of property in the proposed district may protest against its organization. Upon that hearing the court either establishes the district or refuses to do so, and when the district is established by an order of the court a board of commissioners is named for the purpose of carrying out the project. Where the district is to embrace lands in a single county the proceedings are to be had in the county court, but where the district embraces lands in more than one county, the statute provides that the proceedings shall be had in the circuit court of one of those counties, and that in the latter case the words "county court" and "county clerk" where found in the statute shall mean "circuit court" or "circuit clerk." The statute provides for an appeal by any property owner from the order of the court either creating or establishing the district. The statute then provides that upon the creation of a district and the appointment of a board of commissioners, said board shall prepare plans for the proposed improvement and procure estimates as to the cost thereof. One of the provisions in that respect reads as follows:

"Such plans and specifications shall show, not merely the location, width and depth of the ditches, but the work to be done in removing obstructions from water courses, building of pumping stations, flumes, floodgates, and fences to protect the ditches, together with all other work contemplated." Section 4, Acts 1911, supra.

These plans are to be filed with the clerk of the court, accompanied by a map showing the location of all main and lateral ditches, and specifications describing the character of improvements to be made, the width and depth of the ditches, and the probable cost of all the work to be done. Those parts of the statute which relate to the assessment of damages, if any, to the lands in the district read as follows:

"The commissioners shall also assess all damages that will accrue to any landowner by reason of the proposed improvement, including all injury to lands taken or damaged; and where they return no such assessment of damages as to any tract of land, it shall be deemed a finding by them that no damage will be sustained. * * *

"When their assessment is completed the commissioners shall subscribe said assessment and deposit it with the county clerk, where it shall be kept and preserved as a public record. Upon the filing of said assessment the county clerk shall give notice of the fact by publication, two weeks in some weekly newspaper issued in each of the counties in which the lands of the district may lie. Said notice shall give a description of the lands assessed for drainage purposes in said district; that the owners of said lands, if they desire, may appear before the county court on a certain day (naming the day) and present complaints, if any they have, against the assessment of any lands in said district.

"Any owner of real property within the district who conceives himself to be aggrieved by the assessment of benefits or damages or deems that the assessment of any land in the district is inadequate, shall present his complaint to the county court at the first regular, adjourned or special session, held more than ten days after the publication of said notice; and the said court shall consider the same and enter its finding thereon, either confirming such assessment or increasing or diminishing the same; and its finding shall have the force and effect of a judgment, from which an appeal may be taken within twenty days, either by the property owners or by the commissioners of the district." Section 1, Act of 1913, supra.

Section 8 of the act of 1909, supra, reads as follows:

"Any property owner may accept the assessment of damages in his favor made by the commissioners; or acquiesce in their failure to assess damages in his favor, and shall be construed to have done so unless he gives to said commissioners within thirty days after the assessment is filed, notice in writing that he demands an assessment of his damages by a jury; in which event the commissioners shall institute in the circuit court of the proper county an action to condemn the lands that must be taken or damaged in the making of such improvement; which action shall be in accordance with the proceedings for condemnation of rights of way by railroad, telegraph and telephone companies, with the same right of paying into court a sum to be fixed by the circuit court or judge, and proceeding with the work before assessment by the jury. If there is more than one claimant to the lands, all claimants may be made parties defendant in such suit, and the fund paid into court, leaving the claimant to contest in that action their respective rights to the fund."

We must, in the state of the pleadings before us, treat it as conceded that the terms of the statute were complied with concerning the assessment of damages to lands taken or damaged in the construction of the improvement, but appellant seeks to uphold his right of action under Act of 1905, p. 143, which provides that whenever any levee or drainage district "may have appropriated, or shall appropriate any land for right of way for the construction and maintenance of either levees, ditches, canals, or drains and constructed levees or drains thereon, without having procured the consent of the owner, or owners, of such land to construct the levees or drains, or procured the right of way, either by purchase, donation, or condemnation, such owner, or owners, where their cause of action has not been barred by the statute of limitation, shall have a cause of action against such * * * levee or drainage district for the market value of the land at the time it was actually occupied."

The act of 1909 is the last expression of the legislative will on this subject, and the statute of 1905 must yield to the extent that it may be found to be in conflict with it. Whether or not there is in fact any irreconcilable conflict in the statutes we need not now stop to decide. The former statute was construed by this court, and its validity upheld in the case of Young, Adm'r, v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604.

According to the allegations of the complaint, appellant's land has already been taken and used in the construction of the improvement, and there is not involved in this controversy any question about the method of taking. The only question involved relates to the compensation for the property thus taken for the public use. The statute hereinbefore referred to provided a method for the ascertainment of damages or the compensation to be rendered to the owner of property taken or damaged, and we discover no sound reason why that statutory method should not be upheld. It provides for an appraisement of damages by the board of commissioners and for a report to the court which established the district, and where the proceedings are pending, and each property owner is given a hearing after the publication of notice. Two remedies are provided to an aggrieved property owner; first, an appeal to the higher court, and, next, the right within a certain time to demand a jury for an appraisement of the damages.

The only constitutional provision on the subject is found in section 22, art. 2, declaring that —

"Private property shall not be taken, appropriated or damaged for public use, without just compensation therefor."

This constitutional provision relates entirely to the right of the property owner to have compensation, and it has nothing to do with the remedy afforded to the injured property owner, and that matter is left entirely to the legislative will. Taking property for public use of this character falls within the state's right of eminent domain, and we have held that that right may be exercised without notice to the property owner or without giving a hearing...