Gibson v. Lower Running Water Drainage Dist.

• Decision Date: 29 January 1917
• Docket Number: (No. 123.)
• Citation: 191 S.W. 908
• Parties: GIBSON v. LOWER RUNNING WATER DRAINAGE DIST. et al.
• Court: Arkansas Supreme Court

191 S.W. 908

GIBSON v. LOWER RUNNING WATER DRAINAGE DIST. et al.

(No. 123.)

Supreme Court of Arkansas.

January 29, 1917.

Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor.

Action by H. K. Gibson against the Lower Running Water Drainage District and others. Decree for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Appellant, pro se. W. A. Cunningham, of Walnut Ridge, for appellees.

McCULLOCH, C. J.

Appellant is the owner of land within the boundaries of a drainage district in Lawrence county known as the Lower Running Water drainage district, and he instituted this action in the chancery court of Lawrence county to prevent the imposition of assessments on his land. The district was organized in the year 1915, pursuant to the terms of the act of May 27, 1909 (Acts of 1909, p. 829), as amended by the act of April 28, 1911 (Acts of 1911, p. 193). It is contended that the county court never acquired jurisdiction because the publication of the notice to property owners was not based on an order of the county court fixing a day for the hearing. The act of 1911 provides that:

"When three or more owners of real property within a proposed district shall petition the county court to establish a drainage district to embrace their property, describing generally the region which it is intended shall be embraced within the district, * * * it shall be the duty of the county court to enter upon its records an order appointing an engineer to be selected by the petitioners;" that "said engineer shall forthwith proceed to make a survey and ascertain the limits of the region which would be benefited by the proposed system of drainage; and such engineer shall file with the county clerk a report showing the territory which will be benefited by the proposed improvement, and giving a general idea of its character and expense, and making such suggestions as to the size of the drainage ditches, and their location as he may deem advisable."

The statute then further provides as follows:

"The county clerk shall thereupon give notice by publication for two weeks in some newspaper published and having a general circulation in the county, calling upon all persons owning property within said district to appear before the court on some day to be fixed by the court, to show cause in favor or against the establishment of said district. At the time named in said notice, said county court shall meet and hear all property owners within the proposed district who wish to appear and advocate or resist the establishment of the district, and if it deems it to the best interest of the owners of real property within said district that the same shall become a drainage district, under the terms of this act, it shall make an order upon its records establishing the same as a drainage district subject to all the terms and provisions of this act."

It is undisputed that the clerk of the county court gave the notice prescribed in the statute just quoted, and that the court convened on the day named in the notice and made an order establishing the district, but it is also undisputed that the county court did not make an order fixing the day for the hearing. It is contended on behalf of appellant that the notice must be given on the day previously fixed by the county court, and that the jurisdiction of the court to make an order organizing the district is dependent upon such previous order of the court fixing the day of hearing and the notice published pursuant to that order.

We are of the opinion that the argument...