Fort Smith Bridge Company v. Hawkins

• Decision Date: 23 May 1891
• Citation: 16 S.W. 565,54 Ark. 509
• Parties: FORT SMITH BRIDGE COMPANY v. HAWKINS
• Court: Arkansas Supreme Court

16 S.W. 565

54 Ark. 509

FORT SMITH BRIDGE COMPANY v. HAWKINS

Supreme Court of Arkansas

May 23, 1891

APPEAL from Crawford Circuit Court in chancery, HUGH F. THOMASON Judge.

Decree reversed and cause remanded.

Clayton Brizzolara and Forrester for appellants.

1. The first question involved on this case was decided in 13 S.W 796.

2. The boundary line of Crawford county extends to the middle of the main channel of the Arkansas river, but as to the town of Van Buren there is no statute defining its boundaries, which must be determined from the acts of incorporation and the map and plat of said town as recorded. Acts 1850, p. 81, sec. 1; Acts 1842, p. 172; Acts 1844, p. 136; 36 Ark. 166. The general acts of incorporation do not affect the corporate limits or boundaries. Gantt's Dig., ch. 72, sec. 3201; Mansf. Dig ch. 29, secs. 729, 730; 27 Ark. 419; ib., 467. The making and the recording of the plat was a dedication. 2 Dill. Mun. Corp. (4th ed.), secs. 628, 630, 636. The fact that a town is laid off on the banks of a navigable river is sufficient evidence of its extending to the river. 8 B. Mon. (Ky.), 232 et seq. The grant was from the United States, and the survey stops at the edge of the river. The plat defining the limits of a city is construed the same as grants by deed. 8 Frost, 196. The Arkansas river is meandered, and the survey runs only to the river bank. Lester's Land Laws, 714; 1 Woolr., 88. The common law doctrine is not applicable to such streams. Walker Chy. (Mich.), 168. Grants of lands upon navigable rivers from the United States extend only to the margin of the stream. Gould on Waters, secs. 76, 78, and note 5; 54 Am. Rep., 410; 71 Cal. 135; 1 U. S. St. at Large, 468, sec. 9; 2 id., 235, sec. 17; U. S. Rev. St., sec. 2476; 7 Wall. (U. S.), 272; 2 Swan, 1; 75 Ill. 41; 7 Bissell, 201; 4 Iowa 199; 12 How. (U. S.), 454; 32 Iowa 106; 26 Kansas, 682. And to high water mark only. 13 S.W. 931, and cases cited.

Jesse Turner, Sr. and Nimrod Turman for appellee.

1. The case of 53 Ark. 58, determines that the bridge should have been assessed by the assessor.

2. The Arkansas river is the south boundary of the city (Acts 1842, p. 172). Van Buren is then a riparian proprietor, and holds to the middle of the Arkansas river, and the rule laid down in 53 Ark. 314, should be modified. 24 How., 41; 13 id., 421; 27 S.C. 137; 121 Ill. 238; 3 Kent, Com., *p. 427, 13th ed.; 7 Wall., 272; 3 Wash., R. P., top pp. 353-4-5 and notes; L. C. Am. R. P., pp. 370-1-2, etc., vol. 4; 1 Dill. Mun. Corp., pp. 262-3, note 1 to 4th ed.; 6 Cowen, 518; 39 Miss. 100; 3 Scam., 510; 3 Sm. & M., 336 (Miss.); 3 Kent, *p. 428, note (d.). The common law, as laid down by Kent, Washburn and other text writers and as declared in the opinions just cited, has been recognized by a majority of the American States, and is sustained by a decided preponderance of authority. Out of a vast number of decisions we cite the following, by States, viz.:

New Hampshire--See 54 N.H. 548, 28 N.H. 195, 14 N.H. 467, 2 N.H. 369; Connecticut--5 Conn. 388, 9 Con., 38; Vermont--28 Vt. 257, 262; Maine--31 Me. 9, 50 Me. 479, 3 Greenl. 269, 7 Greenl. 273, 290; Massachusetts--5 Pick. 199, 22 Pick. 333, 9 Cush. 544; New York--83 N.Y. 178, 72 N.Y. 211, 68 N.Y. 246, 24 Wend. 451, 26 Wend. 404, 6 Cow. 518, 9 Paige 54; Ohio--3 Ohio 495, 16 Ohio 540, 36 Ohio 396; Illinois--(applying the common law rule to the Mississippi river)--3 Scam. 520, 5 Gil. 54, 47 Ill. 384, 49 Ill. 172, 51 Ill. 266, 54 Ill. 110, 75 Ill. 41, 82 Ill. 46, 179, 89 Ill. 334, 91 Ill. 515, 95 Ill. 84, 101 Ill. 46, 238, 108 Ill. 646, 123 Ill. 535, 124 Ill. 542; Mississippi--(applying the common law to the Mississippi river)--39 Miss. 100, also 3 S. & M. 366, 29 Miss. 21; Wisconsin--2 Wis. 308, 44 Wis. 295, 46 Wis. 237, 47 Wis. 314, 4 Wis. 486, 2 id. 384, 4 Wis. 321, 13 Wis. 692, 16 Wis. 665, 17 Wis. 417, 509, 18 Wis. 118, 20 Wis. 425, 30 Wis. 61, 36 Wis. 50, 42 Wis. 203, ib. 214, ib. 248, ib. 233; Michigan--8 Mich. 18, 10 Mich. 125, 1 Mich. 202, 18 Mich. 196, 19 Mich. 325, 26 Mich. 508, 28 Mich. 182, 30 Mich. 308, 31 Mich. 336, 41 Mich. 453, 466; Kentucky--3 Bush 266, 274, 8 Bush 336; New Jersey--1 Halst. 1, 16 Peters 367, 1 Wall. Jr. 275, 14 How. Eq. 1, 8, 631, 32 N.J. 369; Delaware--2 Harr. (Del.) 489, 5 id. 325; Maryland--5 H. & J. 196, 1 Bland, Ch. 316, 3 id. 453, 1 Gill 430, 22 Md. 530, 537, 42 Md. 348, 2 Md.Ch. 485; Georgia--6 Ga. 130, 141, 18 Ga. 539, 30 Ga. 355, 4 Ga. 241; South Carolina--4 Rich. 68, 27 S.C. 137. The common law doctrine has been recognized by this court in 25 Ark. 120; 39 id., 403.

OPINION

BATTLE, J.

The object of this action is to enjoin the collection of the taxes which were levied by the city of Van Buren, for the years 1886, 1887 and 1888, upon the bridge of the Fort Smith and Van Buren Bridge Company. The bridge is across the Arkansas river, and one-half of it is in Crawford county, in this State, and is in the main line of the St. Louis and San Francisco Railway Company, and is used by that company in the operation of its trains. It was assessed for taxation for the years 1886, 1887 and 1888, by the state board of railroad commissioners as part of the roadbed of the railway company, and was valued by them for that purpose at 263,000. This valuation was added to and included in the assessment of the railway of the St. Louis and San Francisco Railway Company, and $ 3930 thereof, that is to say, of the valuation of the bridge, was apportioned and certified for taxation by Van Buren for the years named. The assessor of Crawford county also assessed the one half of the bridge lying in that county, for the same years, at $ 100,000. The portion of the valuation of the state board of railroad commissioners, which was apportioned to Van Buren, and the valuation of the assessor were entered and extended upon the tax books of Crawford county for each of said years, and a municipal tax of five mills on the dollar levied by the city of Van Buren was assessed and extended against the bridge on such apportionment and the valuation of the assessor on each of said books, and the books, with the taxes so extended, were placed in the hands of the tax collector of Crawford county, with a warrant to each of them attached authorizing him to collect the same. The taxes assessed against the bridge on the apportionment by the state board were paid. But the railway and bridge companies refused to pay the taxes assessed upon the valuation made by the assessor, and seek by this action to restrain the collection of the same. They allege that the collection of them should be restrained because they say no part of the bridge is in the city of Van Buren. On the other hand the collector, the defendant in the action, avers that the entire one-half thereof, which is in the county of Crawford, is in that city. The court below held that so much of the bridge as is in the county of Crawford is within the city of Van Buren, and sustained the levy of taxes assessed against the same upon the valuation fixed by the assessor, and held that the taxes assessed and extended on the tax books according to the apportionment made by the state board were illegal, but held that the bridge company was entitled to a credit on the taxes found to be lawfully assessed against the bridge for the amount of the taxes so paid, and decreed accordingly; and plaintiffs appealed.

Since this court held in Railway v. Williams, 53 Ark. 58, that the bridge in question should be assessed for taxation by the assessors of the counties in which it is situate as the property of the bridge company, and not by the state board as the property of the St. Louis and San Francisco Railway Company, there is but one question in the case, and that is, Is the one-half of the bridge in Crawford county subject to taxation by the city of Van Buren?

Municipal corporations can levy no taxes, general or special, unless the power to do so be plainly and unmistakably conferred. The power must be given either in express words or by necessary or unmistakable implication. It cannot be deduced by doubtful inferences from other powers, or from any consideration of convenience or advantage. Vance v. Little Rock, 30 Ark. 435; 2 Dillon on Municipal Corporations (4th ed.), secs. 763, 764, 786; 1 ib., secs. 89-90.

The statutes of this State limit the right of a municipal corporation to levy taxes to the real and personal property within the limits of such corporation. Mansf. Dig., sec. 896. Was one-half of the bridge in question in the corporate limits of the city of Van Buren?

Van Buren is an incorporated town or city in Crawford county in this State. The boundary line of Crawford county between it and the county of Sebastian is the middle of the main channel of the Arkansas river. That river is navigable as far up as Van Buren, and beyond. The town is situate on the east bank of the river, on the north fractional half of section twenty-five, in township nine north, and in range thirty-two west. This tract of land originally belonged to Thompson and Drennon. They laid off the town on it, and caused a map of the town so laid off to be made and filed in the office of the county clerk of Crawford county in 1842. The town so laid off extended to the river.

Along the bank of the river, the whole length of the town, is a strip of land marked on the map "reserved," which was not divided into lots and blocks, but nevertheless forms a part of the town. This reserve does not belong to the town, but, by an agreement with Thompson and Drennon, the town has been permitted to erect a wharf on it, and to collect wharfage from steamboats lying at such wharf.

The town was incorporated by acts of the General Assembly in 1842 and 1845. The last act declared its corporate limits to be the...