Equen v. Arterbury

• Decision Date: 12 January 1920
• Docket Number: 20858
• Citation: 83 So. 406,121 Miss. 76
• Court: Mississippi Supreme Court
• Parties: EQUEN ET AL. v. ARTERBURY ET AL

83 So. 406

121 Miss. 76

EQUEN ET AL. v. ARTERBURY ET AL

No. 20858

Supreme Court of Mississippi

January 12, 1920

October 1919

1 DRAINAGE. Legislature to provide for establishment.

It is the province of the legislature to provide for the establishment of drainage districts and the authority, as well as the procedure, for the creation of the drainage district, is governed by the statute.

2 DRAINS. Concurrent jurisdiction of courts in either of two counties to establish.

Under Laws 1914, chapter 269, section 1, providing that if land in more than one county is embraced in a proposed drainage district, the application should be made to the chancery court of either county, and all proceedings should be had in such chancery court, does not withdraw jurisdiction to establish such a drainage district from a chancery court because proceedings had originally been instituted in the court of another county.

3 DRAINS. Dismissal of petition not res judicata.

The action of a chancery court in dismissing a drainage petition does not render the matter res adjudicata so as to preclude favorable action by the chancery court of another county on substantially the same petition, especially since Laws 1912, ch. 269, section 4, provides that engineers' reports, surveys, etc., in the first proceeding shall be paid for as part of the cost in a subsequent proceeding.

Hon. JOE MAY, Chancellor.

APPEAL from the chancery court of Leflore county, Hon. JOE MAY, Chancellor.

Petition for the establishment of a drainage district by Thad Arterbury and others, opposed by J. S. Equen and others. From an interlocutory decree confirming the report of a commission, the opposing parties appeal.

The facts are fully stated in the opinion of the court.

Decree affirmed and cause remanded.

Noel & Jordan, for appellant.

I will deal with but two aspects of the case leaving the presentation of authorities to the opening brief of appellants.

So far as I could gather from their brief, there was practically no attempt to meet the proposition and authorities supporting the contention that, Holmes county chancery court has exclusive jurisdiction. If there had been nothing else but the statute constituting chapter 195 of the Laws of 1912, as amended by chapters 269 and 271 of the Laws of 1914, our position on this point would be sustained.

Section 1, chapter 269, of the Laws of 1914, provides:

"If land in more than one county is embraced in the proposed district, the application shall be addressed to the chancery court of any county in such district; and all proceedings shall be had in such chancery court."

The first proceedings were in the chancery court of Holmes county and for a larger district. The second effort was under the same law and for the same lands, and being an action in rem, fixed the rights of all interested in such lands. All subsequent proceedings, if any were maintainable, should have been in the chancery court of Holmes.

Regardless of this statute, the authorities cited in appellant's opening brief for the position that the court of the county in which concurrent jurisdiction is given that first exercise such jurisdiction, retains exclusive jurisdiction, are unanswerable and no attempt is made to answer them or present counter authorities. Therefore, on this initial proposition, the exceptions and objections of appellants should be sustained and the proceedings dismissed.

The decree of the Holmes county chancery court is res adjudicata.. The subject-matter of controversy in this suit, drainage for certain lands in Holmes, Leflore and Carroll counties is exactly the same subject-matter that was involved in the chancery litigation in Holmes county in which decree was rendered dismissing the petition, simply retaining jurisdiction for the purpose of apportioning and collecting costs. It was a proceeding, as is this, not to affect the petitioners or counter petitioners otherwise than by subjecting or relieving certain land of certain charges. It was strictly a proceeding in rem, affecting the lands and the lands only, regardless of their ownership. Therefore, the question of whether or not there has been some change in ownership between the time of the Holmes county suit and the institution of this suit is wholly immaterial. The sole question in each is whether or not a drainage district should be established embracing the lands in controversy and whether it was and is maintainable under the statutes above referred to, chapter 269 of the Laws of 1914, embracing the particular provisions in controversy.

The chancery court of Holmes county, after full and thorough investigation and after preliminary survey and report were made, evidence and argument heard, dismissed the bill, holding that while the establishment of the district might be for the advantage of owners of real property therein, that it was not for the public benefit. No appeal was taken from that decision and it stands now in full force.

The attempt to meet this decision on a drainage proposition that does not affect one acre in a thousand comparing it with a creation of public roads which touches every acre of land everywhere, is utterly untenable.

Every owner of land is entitled to an inlet and an outlet. Public roads are used by all occupants of lands everywhere and are an absolute necessity. If one proposition for creating a public road fails, it does not defeat other propositions, under different circumstances, for the necessity for public roads remains and must be met in some way, otherwise the ownership of land is valueless, lands hemmed in with no means of ingress or egress are prisons, places of punishment and not a profit or pleasure. Drainage, in the sense used in the drainage laws consisting of large drainage ditches covering different counties or portion of one county are questions that do not affect one per cent of the cultivated lands in this state, are not necessities and may be a detriment, as in this case, to adjoining landowners and so determined by the courts, even if not otherwise than greatly beneficial to the owners of the territory in the district. To hold that the decisions supporting this view of the law mean nothing, and that one suit can be instituted as soon as another is finished, covering the same subject-matter, law and persons, seems to me utterly untenable.

The requirement of the decree and the law that drainage maps and other parts of the record of drainage contests should be preserved, indicate no purpose of making the decision otherwise than final. In all land cases, final records are required to be preserved. The maps and drainage data, showing the levels of the lands, would be worth something to the owners of the property who paid for it, even if the suit is dismissed; of course, the maps and other records should be preserved for in this way only could the plea of res adjudicata be sustained and some return he had for outlays incident to the survey which is made a tax on all of the lands.

Pleadings of appellants are proper and legal. Very few chapters covering proceedings of drainage or other matters are complete laws within themselves. It is an elementary principle that the common law, equitable rules and the statutes cover all subjects that are justiciable. The statutes merely displace or modify common low or equitable rules or are declaratory of the same, whether these rules be of pleading or of substantive law.

Pleadings are nothing more than presentation of the questions of fact on which the complaining or defending party relies; our statutes on the subject, declaratory of common law, are found in sections 729, 739, and 687 of the Code of 1906 and sections 512, 522, and 465 of Hemingway's Code. They declare this principle is applicable to all courts and to all pleadings.

Besides, the statutes in controversy, embodied in chapter 269 of the Laws of 1914, so far as it affects this case are not susceptible of any such narrow construction, and do not attempt to prescribe rules of pleading.

The petitions in this case set out certain facts, including the proportion of landowners and of lands represented with the allegation that it is to the best interest of the owners of the real property and for the public benefit that the district should be established. All of these and other material allegations are denied and affirmative defenses including plea of res adjudicata and of want of jurisdiction in the Leflore chancery court are set up in the answers and counter-petitions.

These answers and pleas are met with a bald proposition that the law in question, chapter 269, of the Laws of 1914, absolutely require the establishment of a district whenever the requisite proportion of landowners is obtained without a counter-petition being presented by a majority of the landowners, owning one-third of the land, or one-third of the landowners owning a majority of the land, be presented to the court praying that the drainage be not made. Such is not the law. Both sections 1 and 2, pages 330 and 332 of the Laws of 1914, provide that the district shall not be established, regardless of the number of signers, unless it is "for the public benefit." Section 1 further provides:

"At the time named in said notice, said board shall meet and hear all property owners within the proposed drainage district who wish to appear and advocate or resist the establishment and if it deem it is to the best interest of the owners of real property within the said district and for the public benefit, that same shall become a drainage district under the terms of this act; it shall make an order upon its minutes establishing same as a drainage district." Laws of 1914, p. 330-31.

Practically the same provision is contained in section 2, page 332,...